Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1323 (9th Cir. 1987)

No. 87-5961.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and EARL H. CARROLL* , District Judge.



This appeal involves, inter alia, a question of whether and under what circumstances the defense of qualified immunity may be invoked to preclude discovery in what is essentially a wrongful termination suit. The district court entered summary judgment in favor of the defendants on all counts, and we affirm, albeit for reasons other than those advanced by the district court.


Stephen S. Stokwitz ("Stokwitz" or "appellant") was formerly employed by the United States Navy as a civilian attorney at the Naval Ocean Systems Center ("NOSC") in San Diego, a high security weapons and communications research and development facility. Allegations of the appellant's misconduct led to an investigation which resulted in his dismissal. Stokwitz thereupon sought reinstatement with the federal government by way of a federal court injunction against his former employer. When the district court denied the requested relief, the appellant filed a First Amended Complaint asserting fifteen causes of action against the United States and ten Bivens defendants, only four of whom were properly served and appeared.

The defendants filed an alternative motion to dismiss or for summary judgment, arguing, inter alia, that they were entitled to the defense of qualified immunity. The district court stayed discovery in the proceedings until it could rule on the defendants' alternative motion. Following a hearing with oral argument, the court granted summary judgment in favor of the United States on all fifteen claims and in favor of the four Bivens defendants on all but two of the claims. The four individual defendants immediately took an interlocutory appeal to this court, arguing that the district court's failure to grant summary judgment on the two remaining claims effectively denied them the protection of qualified immunity and would improperly subject them to discovery. We remanded for a determination whether the defendants were entitled to the defense of qualified immunity. On remand, the district court entered summary judgment in favor of the Bivens defendants on the two remaining claims. As that ruling effectively disposed of all claims against all parties, Stokwitz timely appealed.


The fifteen counts of Stokwitz's First Amended Complaint consisted of nine federal law claims (Counts I through VIII and XV) and six pendent state law claims (Counts IX through XIV). Stokwitz abandoned the six state law claims on appeal, and the remaining nine claims1  challenge only those portions of the district court's orders involving the four Bivens defendants, viz., Captains Pestorius and Darwin, respectively the NOSC's Commanding and Executive Officers; Kay Talley, Stokwitz's secretary; and Mary Waldsmith, a NOSC civilian attorney serving as Stokwitz's assistant (collectively, "appellees").

Stokwitz raises several issues with respect to the district court's resolution of the above nine claims. These issues may be summarized as follows:

1. The district court erred by staying discovery pending its ruling on the alternative motion to dismiss or for summary judgment;

2. The district court erred by granting summary judgment in favor of the appellees, and by holding that the appellees were entitled to immunity, because (a) the appellant had not been permitted to engage in adequate discovery, and (b) genuine issues of material fact existed with respect to at least some of the appellant's claims;

3. The district court erred by not allowing the appellant to amend his complaint again; and

4. The district court erred by ruling as it did on the two remaining counts following this court's remand.

Each of the above issues will be addressed in its turn.

* Stokwitz's contention that the district court erred by staying discovery until it could rule on the appellees' pending alternative motion to dismiss or for summary judgment is without merit and may be summarily disposed of.

A district court enjoys wide discretion in controlling the scope and extent of discovery, and it is not an abuse of that discretion to stay discovery until the question of a defendant's immunity can be resolved on summary judgment. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1989) (as amended). Cf., Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987) (because qualified immunity questions to be resolved at earliest possible stage of litigation, stay of discovery appropriate where question can be resolved on summary judgment). The district court did not err by staying discovery pending the outcome of the appellees' alternative motion.


The gist of the appellant's second argument is that a trial court cannot hold as a matter of law that no genuine issues of material fact exist on a given claim when there has been inadequate discovery. While it is possible for a court to resolve the question of immunity on summary judgment without allowing for discovery, see, e.g., Anderson, 483 U.S. at 646 n. 6; Little, 863 F.2d at 685, the district court's grant of summary judgment in the instant case was based only in part on a finding of immunity. Nevertheless, we may affirm the decision of a district court on any basis finding support in the record. Fadhl v. City & County of San Francisco, 859 F.2d 649, 651 (9th Cir. 1988) (per curiam).

The appellant's putative fifth amendment claims include the alleged denial of an opportunity for him to respond to the charges made against him; the making of defamatory statements by government officials; wrongful termination; and the deduction of $560.38 from his final salary check without prior notice or an opportunity to respond. These claims lack merit.

With reference to Stokwitz's first contention, we note that he was not terminated until after he had been flown to Washington, D.C. to meet with a representative of the Office of General Counsel, where the charges against him were outlined and the appellant was afforded the opportunity to respond thereto, which he did. As for the so-called "stigmatizing" comments of government officials, virtually all of the allegedly defamatory statements referred to by the appellant were made public, not by any government officials, but by Stokwitz himself.2  With respect to the appellant's claim that he was wrongfully terminated, he has neither alleged nor shown any circumstances surrounding his excepted, i.e., at-will, employment which would have given rise to anything more than a mere expectancy of continued employment. Such is insufficient to create a federally protected property interest. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 578 (1972).3  Finally, as to Stokwitz's claim concerning the withholding of $560.38 from his final check, we note that the federal government is authorized to take such action, see 5 U.S.C. §§ 5511(b), 5514(a) (1), and the question whether proper administrative procedures were followed in doing so states no claim as against the appellees, none of whom was in any position to direct or authorize the withholding of any monies allegedly due the appellant.

B. Fourth Amendment Claims (Counts III, IV, and V)

Stokwitz's fourth amendment claims are that his office was subjected to an unlawful search which resulted in the improper seizure of some personal effects, and that his mail and telephone calls were being intercepted. These contentions also fail.

The appellant's first argument raises the question of the appellees' defense of immunity. As this court recently noted with respect to qualified immunity,

The rule as to qualified immunity is that "government officials performing discretionary functions, generally are shielded from liability for civil damages 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).

Little, 863 F.2d at 684. Qualified immunity is not merely a defense to liability, however; it is a right not to stand trial and, where the circumstances warrant, to avoid being subjected to discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, " [u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Id. (citing Harlow, 457 U.S. at 818).

In determining whether "clearly established" legal precedent existed at the time in question, a court must examine not only the law of the relevant jurisdiction, but all available decisional law. Wood v. Ostrander, 851 F.2d 1212, 1217 (9th Cir. 1988). The closest Ninth Circuit case on point was that of United States v. Bunkers, 521 F.2d 1217 (9th Cir.), cert. denied, 423 U.S. 989 (1975), in which a postal employee's locker was searched without a warrant. We held in that case that the employee could not have had a reasonable expectation of privacy in the locker because of a postal regulation which subjected the lockers to search. Id. at 1219. We further noted that the locker was government owned and on government property, and had been furnished to the appellant as an incident of her employment. Id. Accord, Williams v. Collins, 728 F.2d 721, 728 (5th Cir. 1984) (warrantless search of employee's office and desk, including locked desk drawer, and temporary seizure of personal items, were within outer limits of civilian and military defendants' authority entitling them to immunity).

Here, a NOSC regulation,4  of which Stokwitz admittedly had notice, provided for the inspection of all "government spaces ... [private] vehicles ... [and] personal possessions." The desk and credenza, from which various government and personal items were inventoried and retained, were furnished by the government to a government employee on a high security military installation. The actual examination of those items inventoried and retained was done pursuant to a search authorization issued by the NOSC's Commanding Officer, Captain Pestorius, in accord with the dictates of Military Rule of Evidence 315. Viewing these uncontroverted facts in light of the above authorities, it cannot be said that the appellees acted unreasonably or unconstitutionally with respect to the search of the appellant's office and the seizure of various items.

Turning now to Stokwitz's contentions concerning the appellees' alleged interception of his mail and office telephone calls, we note at least one troubling point. When the appellees filed their alternative motion, it was amply and properly supported as a motion for summary judgment. Although the appellant submitted lengthy and convoluted cross-motions, the gist of those filings stated little more than that he needed additional discovery to make his claims good.

Federal Rule of Civil Procedure 56(f) states, in relevant part,

Should it appear from the affidavits of a party opposing [a motion for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may ... permit ... discovery to be had....

In other words, " [u]nder Rule 56(f), an opposing party must make clear what information is sought and how it would preclude summary judgment." Garrett v. City & County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987).

Here, Stokwitz's repeated insistence that he needed additional discovery never did "make clear what information [was] sought and how it would preclude summary judgment." Id. In effect, he did little more than repeat bald allegations. (Indeed, at oral argument he conceded that his allegation of telephone interceptions had been based on little more than an unsubstantiated belief that the government was probably monitoring his calls.) Under these circumstances, the district court did not abuse its discretion by denying the request for additional discovery and ruling on the appellees' adequately supported motion for summary judgment. See Little, 863 F.2d at 685.

The appellant's first amendment claim, boiled to its essence, is that the actions complained of in Counts III through V resulted in a "chilling" of his speech. At the risk of being accused of only cursorily addressing this issue, we note that the same problems which plagued Stokwitz's fourth amendment claims are also present here, i.e., having failed to allege or show that the appellees' actions violated any "clearly established statutory or constitutional rights of which a reasonable person would have known," Little, 863 F.2d at 684, the first amendment claim is without merit.

D. Privacy Right Claims (Counts VII and VIII)

Counts VII and VIII of the appellant's First Amended Complaint essentially recast Stokwitz's fifth amendment claim that the appellees defamed him by publishing stigmatizing information about him. In light of the fact that whatever publication of stigmatizing information occurred was largely the appellant's own doing, and in the absence of a showing that the appellees violated any clearly established rights, this claim must also fail.

Because Stokwitz's ninth claim says only that the appellees conspired to do the things set out in his first eight counts, none of which stated a claim as against the appellees, this contention is also meritless.


The two remaining issues may be summarily disposed of. Stokwitz first contends that the district court should have permitted him to amend his complaint again rather than dismiss it. We disagree. A careful examination of the First Amended Complaint reveals that it could not have been repleaded in such a way as to overcome the insurmountable bar of the appellees' immunity. Cf., Kelson v. City of Springfield, 767 F.2d 651, 656 (9th Cir. 1985) (dismissal under Fed. R. Civ. P. 12(b) (6) inappropriate unless clear that complaint could not be saved by amendment). The district court did not err on this point.

The appellant's second contention is that the district court exceeded the scope of our remand order by granting the motion for summary judgment in favor of the appellees on the two remaining claims. This is incorrect.

We have long recognized this court's inherent power to retain general jurisdiction over an appeal otherwise properly before us while remanding to the district court for a limited purpose, e.g., an evidentiary hearing or additional findings of fact and conclusions of law. See, e.g., United States v. Davis, 714 F.2d 896, 897, 901 (9th Cir. 1983) (limited remand for evidentiary hearing); United States v. Kimmel, 672 F.2d 720, 722-23 (9th Cir. 1982) (limited remand to supplement record). The underlying (and unspoken) premise to this doctrine of limited remand is that we have appellate jurisdiction to begin with, but remand to the district court for a limited period of time in which it is to do a specific thing.

The original panel's order of January 21, 1987, did not state that it had jurisdiction over the appeal; instead, the order indicated that the panel members were "unable to determine ... whether the district court [had] made a final ruling on the immunity issue" and that appellate jurisdiction "to review the order of the district court ... can only be based upon a denial of an immunity defense for the named defendants." Id. (emphasis added). When the district court found on remand that the appellees were entitled to the defense of qualified immunity and granted their motion for summary judgment, the original appellate panel correctly declared, in its order of June 25, 1987, that

[a]s our jurisdiction to review the order of the district court could only be based on a denial of an immunity defense for the named defendants, and, upon limited remand, the district court has granted the immunity defense, we are without jurisdiction to review the order from which this appeal was taken.

Thus, the district court did not exceed the scope of its authority on the limited remand.

Accordingly, and for the reasons set forth above, we AFFIRM the decision of the district court.


The Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Counts I and II, fifth amendment procedural due process (denial of opportunity to respond to charges; defamation; wrongful termination; deduction of monies from salary without notice or opportunity to respond); Counts III, IV and V, fourth amendment unlawful search and seizure (search of office and seizure of personal effects; interception of mail and telephone calls); Count VI, first amendment free speech (chilling effect as result of conduct complained of in Counts III, IV and V, supra) ; Counts VII and VIII, invasion of privacy (public disclosure of information obtained from unlawful search and seizure; public accusations of misconduct); and Count XV, conspiracy to violate civil rights (based on misconduct alleged in above counts)


Among the examples cited by the appellant is the information provided by the Navy to the California Employment Development Department ("CEDD"). However, it was the appellant's application to CEDD for unemployment benefits that triggered the CEDD's request to the Navy and the Navy's response, a response available to Stokwitz but not to the public at large. See Cal.Unemp.Ins.Code Secs. 1094, 1095. It was the appellant who made this document public in his Request for Reconsideration filed December 27, 1984


While a dismissal for cause that stigmatizes an individual will give rise to a liberty interest entitling him to notice and an opportunity to respond, see Roth, 408 U.S. at 573, we note both that Stokwitz received a pretermination hearing and that the publication of stigmatizing information was largely his own doing. We further note that none of the appellees had the authority to fire Stokwitz


NOSC Instruction 12752.2: "Detection, The Commander, NOSC has the authority to take the following measures to identify drug offenses on the Center or to prevent introduction of illegal drugs and paraphenalia [sic] to the Center: (a) Inspection of government spaces including the use of dog detection teams. (b) Inspection of vehicles with drug detection teams. (c) Inspection of personal possessions." Although this regulation speaks of suspected drug abuse, it is nevertheless relevant here. One of the allegations against Stokwitz was that he used illicit drugs, viz., cocaine