Opinion
Civil Action No. 00-2439-CM
October 4, 2002
MEMORANDUM AND ORDER
Pending before the court is defendant Unified School District #497's (U.S.D. #497) Motion for Stay Pending Appeal (Doc. 174). As set forth below, the court amends its September 17, 2002 order. Accordingly, the court denies defendant U.S.D. #497's Motion for Stay Pending Appeal.
Motion for Stay Pending Appeal
Defendant U.S.D. #497 moves the court for an order staying all proceedings pending appeal pursuant to Fed.R.App.P. 8(a). On September 23, 2002, defendants filed notice of their interlocutory appeal (Doc. 175) of the court's September 17, 2002 order (Doc. 168) (hereinafter "the September 17 order"). In its September 17 order, the court granted in part and denied in part defendants' motion for summary judgment. The court granted summary judgment in favor of defendants as to all claims except plaintiffs' claims under the Individuals with Disabilities Education Act (IDEA) and under the Due Process Clause of the U.S. Constitution. Specifically, the court noted that the only claims surviving the motion for summary judgment were plaintiffs' IDEA claims against defendant U.S.D. #497 and defendant Dr. Douglas Eicher in his individual and official capacities, and plaintiffs' procedural due process claim, as against defendant U.S.D. #497 only.
In their motion for stay, defendants state they have filed a notice of appeal from the September 17 order because the court should have determined that defendant Eicher is qualifiedly immune from suit as to plaintiffs' IDEA claims asserted against him in his individual capacity.
A. Jurisdiction
As defendants point out, the filing of an interlocutory appeal challenging a denial of qualified immunity "is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Stewart v. Donges, 915 F.2d 572, 575 (10th Cir. 1990) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). An interlocutory appeal on a qualified immunity basis therefore "divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant." Id.
Importantly, however, "[i]f a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of any motion listed in Rule 4(a)(4)(A) [including a motion to alter or amend the judgment under Fed.R.Civ.P. 59, see Fed.R.App. 4(a)(4)(A)(iv); and a motion for relief under Fed.R.Civ.P. 60 if filed no later than 10 days after the judgment is entered, see Fed.R.App. 4(a)(4)(A)(iv)] — the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." Fed.R.App.P. 4(a)(4)(B)(i).
In this case, defendants filed their notice of appeal on September 23, 2002, less than 10 days after the entry of judgment of the September 17, 2002 order. Defendants' notice of appeal is therefore premature, and has not divested the court of jurisdiction to enter an order pursuant to Fed.R.Civ.P. 59(e). See Ellis v. CAC Fin. Corp., 6 Fed. Appx. 765, 768-69 (10th Cir. 2001). In Ellis v. CAC Financial Corp., the Tenth Circuit held that the appellants' notice of appeal of a district court's decision on a motion for summary judgment "was timely, yet premature, because they also filed a Rule 60 motion on the same day as their notice of appeal." 6 Fed. Appx. 765, 768 (10th Cir. 2001) (citing Fed.R.App.P. 4(a)(4)(A)(vi)). Consequently, the notice of appeal "became effective when the district court denied their Rule 60 motion." Id. Even though Ellis did not concern a notice of appeal regarding the immediately appealable issue of qualified immunity, the express language of Fed.R.App.P. 4(a)(4) appears to encompass all appeals, and the court has found no case law to the contrary.
The court believes that Ellis and Fed.R.App.P. 4(a)(4) support the conclusion that the district court retains jurisdiction to enter an order pursuant to Rule 59, if the Rule 59 motion was filed within ten days after entry of judgment. However, in this case, defendants did not file a Rule 59(e) motion on the issue of qualified immunity. Notwithstanding, the court concludes that defendants' notice of appeal does not divest the court of jurisdiction to alter or amend its own judgment on the issue of qualified immunity, if the court acts within 10 days of the entry of its September 17, 2002 order.
The Tenth Circuit has recognized authority from other circuits indicating that a district court may alter or amend one of its orders sua sponte pursuant to Federal Rule of Civil Procedure 59(e), if the court acts within 10 days of the entry of judgment. See Marshall v. Shalala, 5 F.3d 453, 454-455 (10th Cir. 1993) (citing Burnam v. Amoco Container Co., 738 F.2d 1230, 1231-32 (11th Cir. 1984)). Though the Tenth Circuit has not expressly held that such practice is permissible, the court did not use the opportunity presented in Marshall to reject the concept. Id. Rule 59(e) states that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e). Though Rule 59(e) is silent as to whether the court may order such relief on its own initiative, the Eleventh Circuit has interpreted the rule's silence to be without significance, given the court's inherent powers. Burnam, 738 F.2d at 1232 ("the authorizations in Rules 60(a) and 59(d) for the court to act on its own motion are only declaratory examples of the general power of the court to act on its own initiative,") (quoting 6A Moore's Federal Practice ¶ 59.12[4] (updated version appears at 12 Moore's Federal Practice ¶ 59.33 (2001)); see also Fed.R.Civ.P. 1 (stating that the Federal Rules of Civil Procedure "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action"). Accordingly, the Eleventh Circuit recognized that "so long as the court acts within ten days after the entry of judgment, the court has the power on its own motion to consider altering or amending a judgment." Id.
Because the instant order is filed within ten days of the September 17, 2002 order, the court thus recognizes that it may, pursuant to Federal Rule of Civil Procedure 59(e), alter or amend its September 17, 2002 order.
B. Qualified Immunity
Foremost, the court clarifies that the September 17, 2002 order reflected the court's inference that defendants had not asserted the defense of qualified immunity in regard to plaintiffs' IDEA claim, but rather only in defense of the constitutional claims plaintiffs pled under 42 U.S.C. § 1983. Upon reexamination, however, the court finds that defendants did raise qualified immunity as a defense to the IDEA claim. Initially, the court notes that, in the Pretrial Order, defendants pled, as their first theory of recovery, the defense of qualified immunity to protect defendant Eicher "from pecuniary liability under § 1983." (Pretrial Order at 16). Further, both parties' summary judgment pleadings addressed the qualified immunity issue only in very general terms, without applying the doctrine to any of plaintiffs' specific claims. The court therefore did not believe defendants intended their qualified immunity defense to apply to plaintiffs' IDEA claim against defendant Eicher. In reexamining the Pretrial Order and the pleadings, the court notes that defendants stated in a previous section of the Pretrial Order, which provides a general list of defendants' defenses, that defendant Eicher "has qualified immunity with respect to plaintiffs' claims under 42 U.S.C. § 1983, or other federal laws." (Pretrial Order at 9). The court interprets this statement to encompass the IDEA claim against defendant Eicher. The court thus examines the qualified immunity defense as it pertains to plaintiffs' IDEA claim against defendant Eicher.
Public officials performing discretionary functions generally enjoy qualified immunity from civil damages liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a qualified immunity claim is raised in a motion for summary judgment, the relevant question is whether a reasonable official could have believed that his or her acts were lawful in light of clearly established law and the information the official possessed at the time of the allegedly unlawful conduct. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The defense of qualified immunity is available to a defendant sued in his or her individual capacity, but is unavailable to the extent the defendant is sued in his or her official capacity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).
The "contours" of the right allegedly violated "must be sufficiently clear that a reasonable official would understand that what he is doing violated that right." Id. at 635. The plaintiff "must do more than identify in the abstract a clearly established right and allege that the defendant has violated it." Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988). For a law to be considered "clearly established" for purposes of qualified immunity, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Patrick v. City of Overland Park, 937 F. Supp. 1491, 1499 (D.Kan. 1996) (citing Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). The plaintiff has the burden of establishing that the law was clearly established when the alleged violation occurred. Pueblo Neighborhood Health Ctrs., 847 F.2d at 645.
When defendants move for summary judgment on the basis of qualified immunity, plaintiffs bear a heavier burden than is normally imposed to avoid summary judgment. Plaintiffs must show that the defendants violated clearly established law. Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990). To meet this burden, plaintiffs "must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing the defendant's actions were clearly prohibited." Id.
If the plaintiffs meet their burdens of identifying the clearly established law that the defendants allegedly violated and demonstrating that the defendants' alleged conduct violated that law, the burden shifts to the defendants to show that no material issues of fact remain as to whether their actions were objectively reasonable in light of the law and the information they possessed at the time. Pueblo Neighborhood Health Ctrs., 847 F.2d at 646. A showing of objective reasonableness entitles defendants to summary judgment unless the plaintiffs show that there are factual disputes relevant to the claims of immunity. Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405 (10th Cir. 1990).
Here, plaintiffs claim that defendant Eicher violated IDEA in his individual and official capacities by denying plaintiffs R.L. and J.L. a free and appropriate public education. While the Tenth Circuit has recognized that a cause of action under 42 U.S.C. § 1983 is unavailable to enforce IDEA, it has not yet ruled whether IDEA permits individual liability or damage awards. Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000). Furthermore, the court has not located a Tenth Circuit or Supreme Court decision holding that a school official violates IDEA's obligation to provide a free and appropriate public education if the official suspends a student whom the official believes is not a resident of the district, without first providing the student with a due process hearing. Under the facts of this case, the court does not believe that defendant Eicher should have been on notice that his actions violated clearly established law.
Accordingly, the court amends its September 17, 2002 order, to the extent that the order permitted claims against defendant Eicher in his individual capacity. Defendants' motion for summary judgment is thus granted as to defendant Eicher in his individual capacity. Defendant Eicher remains in the lawsuit to the extent that plaintiffs state a claim against him under IDEA in his official capacity. The court therefore denies defendants' motion to stay pending appeal, leaving a ruling on the status of that appeal to the appellate court.
Order
IT IS ORDERED THAT the court's September 17, 2002 Memorandum and Order (Doc. 168) is amended as follows:
Defendants' Motion for Summary Judgment is granted as to plaintiffs' IDEA claim asserted against defendant Eicher in his individual capacity. Plaintiffs' Motion for Partial Summary Judgment is denied as to plaintiffs' IDEA claim asserted against defendant Eicher in his individual capacity.
The final sentence of the opinion is amended to read, "In sum, the only claims that remain for trial are plaintiffs' IDEA claim against defendants U.S.D. #497 and Eicher, in his official capacity only, and plaintiffs' procedural due process claim against defendant U.S.D. #497."