Daniel H. Nee v. William Byrne

After his termination as the head men’s basketball coach for the University of
Nebraska-Lincoln, Daniel H. Nee brought this diversity action against the
University’s athletic director, William Byrne, alleging Byrne defamed Nee and
interfered with Nee’s employment contract. In his answer, Byrne raised the
affirmative defense of immunity under the Eleventh Amendment and Nebraska law.
The alleged defamatory statements were not set forth in the complaint, and in June
2001, the magistrate judge ordered Nee “to disclose, specifically, each alleged false
and untrue statement made by [Byrne] about [Nee],” identifying the nature of the
statements and the language used, the person who heard the statement, and the date and place made. The magistrate judge gave Nee eight days to comply, and set a filing
deadline of September 14, 2001 for summary judgment motions related to affirmative
defenses. Nee objected, and the district court* held the magistrate judge’s order is
clearly erroneous and contrary to law. In the district court’s view, the order precluded
Nee from conducting meaningful discovery about the defamation allegations. The
court stated:

After the parties have completed discovery, [Byrne] might conclude that
these alleged defamatory statements were made in the scope of
employment and thus the Eleventh Amendment might be a bar to suit.
However, it is too early in the case, absent any discovery at all, to arrive
at that conclusion. [Byrne] is free to raise motions regarding his
affirmative defenses at the appropriate time. In that regard, on or about
August 20, 2001, [Byrne] filed a motion for summary judgment in this
case. I have likewise reviewed that motion, index of evidence and
supporting brief. That motion is based in large measure on the required
disclosures set forth in [the erroneous order]. Consequently, . . . I am
going to deny the motion for summary judgment at this time, subject to
reassertion after [Nee] has had sufficient time to conduct his discovery.

On appeal, Byrne challenges the district court’s denial of summary judgment and the
scope of discovery.

Qualified immunity protects government officials serving in a discretionary
capacity from liability for actions undertaken in their official capacity. Harlow v.
Fitzgerald, 457 U.S. 800, 816 (1982). Immunity gives government officials both the
right to avoid trial and to avoid pretrial burdens like discovery, which can disrupt
governmental effectiveness. Behrens v. Pelletier, 516 U.S. 299, 308 (1996). Thus,
denials of immunity are appealable under the collateral order doctrine. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). Also, because immunity shields government
officials from discovery that is either avoidable or overly broad, Harlow, 457 U.S. at
817-18, immediate appeals are permitted from orders permitting discovery designed
to flesh out the merits of a plaintiff’s claim before a ruling on the immunity defense.
Gaines, 928 F.2d at 707; Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir. 1989).

Here, the district court’s denial of Byrne’s motion for summary judgment based
on immunity “at this time, subject to reassertion after . . . discovery” does not
conclusively decide Byrne’s entitlement to immunity, but merely delays a final
decision on that issue. See Krein, 250 F.3d at 1188; Maxey, 890 F.2d at 283. Thus,
we lack jurisdiction to consider the part of Byrne’s appeal challenging the district
court’s denial of summary judgment. See Krein, 250 F.3d at 1186, 1188. Although
the district court’s order directing discovery to proceed is not a model of clarity, the
order is clearly focused on the immunity issue and its early resolution. Indeed, at
oral argument the parties told us the magistrate judge is developing a discovery
program that will bring the immunity issue to the forefront for decision as soon as
possible. The discovery order is thus not overly broad, and we lack jurisdiction to
(and have no need to) correct it. Maxey, 890 F.2d at 283-84; Gaines, 928 F.2d at 707.

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Accordingly, we dismiss for lack of jurisdiction.

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