UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


KIMBERLIN, BRETT C.

v.

QUINLAN, MICHAEL J.


98-5530a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: In 1990, Brett Kimberlin brought  this Bivens
action alleging, inter alia, that J. Michael Quin- lan, formerly the
Director of the Federal Bureau of Prisons,  and Loye Miller, formerly
the Director of Public Affairs for  the United States Department of
Justice, violated his consti- tutional rights under the First
Amendment. This is the  second time that this court has had occasion
to hear an appeal  in this case. The first appeal followed an order by
the  District Court denying defendants' motion for summary judg- ment
on grounds of qualified immunity. See Kimberlin v.  Quinlan, 774 F.
Supp. 1 (D.D.C. 1991) ("Kimberlin I"). We  reversed the District
Court, see Kimberlin v. Quinlan, 6 F.3d  789 (D.C. Cir. 1993), but the
Supreme Court granted certiora- ri, vacated this court's decision in
light of Johnson v. Jones,  515 U.S. 304 (1995), and remanded the case
for further  proceedings. See Kimberlin v. Quinlan, 515 U.S. 321
(1995).  We then remanded the case to the District Court. The trial 
court then considered and denied defendants' renewed motion  for
summary judgment on grounds of qualified immunity. In  reaching this
conclusion, the District Court held that its  judgment in the initial
proceeding established the law-of-the- case regarding the existence of
clearly established law and  that this was dispositive of the
qualified immunity issue. See  Kimberlin v. Quinlan, Civ. Act. No.
90-1549, Mem. Op.  (D.D.C. Oct. 21, 1998), reprinted in Joint Appendix


We affirm the judgment of the District Court on the law-of- the-case
issue. In their appeal of Kimberlin I, appellants did  not challenge
the District Court's judgment regarding the 


clearly established law; thus, the issue was settled as to these 
parties in this case. And there was no good reason for the  District
Court to reexamine its judgment when the case was  remanded for
further proceedings.


The judgment on the clearly established law, however, is  not fully
dispositive of the issues raised by appellants' re- newed motion for
summary judgment on grounds of qualified  immunity. The District Court
must now determine whether  there are disputed issues of fact as to
whether appellants  violated the clearly established law either by
intentionally  segregating Mr. Kimberlin from the general prison
popula- tion or by interfering with his press contacts on account of 
the content of his speech. In particular, the District Court  must
inquire whether Mr. Kimberlin has identified affirma- tive evidence
from which a jury could find that he has carried  his burden of
proving the pertinent motive.


Accordingly, the judgment of the District Court on the law- of-the-case
issue is affirmed. However, the case is remanded  for further
proceedings to address the remaining issues on  the qualified immunity
claim and, if necessary, to proceed to  hear the case on the merits in
the event that appellants'  motion is denied.


I. BACKGROUND


A. Factual Background


In 1988, Brett Kimberlin was an inmate at the Federal  Correctional
Institute at El Reno, Oklahoma. Nina Toten- berg, a reporter with
National Public Radio, contacted Mr.  Kimberlin approximately one
month before the November  1988 election, acting on a tip that Mr.
Kimberlin claimed to  have sold marijuana to then-vice-presidential
candidate Dan  Quayle while Mr. Quayle was in law school. The story
leaked  to other news organizations, and, in short time, the prison 
was inundated with requests to interview Mr. Kimberlin.


Mr. Kimberlin claims that on three occasions he was placed  in
administrative segregation because of his communication  with the
press and that on each occasion appellants interfered 


with his access to the press because of the content of his  speech. The
first detention occurred on November 4, 1988,  after Mr. Kimberlin
conducted an interview with NBC News  that NBC never aired. After the
NBC interview, several  news organizations contacted the prison the
same day and  requested interviews with Mr. Kimberlin. Prison
officials  arranged a group interview for that evening at 7:00 p.m.
The  event never occurred, because Mr. Quinlan personally can- celed
the interview. The District Court has previously ob- served that there
was "some question even from the defense  side as to why he did that."
Kimberlin I, 774 F. Supp. at 7.  Subsequently, around 11:00 p.m., Mr.
Kimberlin was placed in  administrative detention. The parties dispute
the reasons  both for the interview's cancellation and for Mr.
Kimberlin's  detention; we pass no judgment regarding whether there is
 sufficient evidence to establish a dispute as to the defendants' 
role in and motivation for the cancellation of the interview  and the
placement of Mr. Kimberlin in detention. Mr. Kim- berlin was released
from administrative detention on Satur- day, November 5, and he began
to organize a telephone call  to a group of reporters in Washington,
D.C., to take place at  10:00 a.m. on November 7, the day before the


Mr. Kimberlin was never permitted to make his phone call,  because on
Monday, November 7, he was placed in adminis- trative segregation for
a week. The parties again dispute the  reason for this decision. Mr.
Kimberlin was confined to  administrative detention a third time on
December 22, 1998.  Mr. Kimberlin alleges that the defendants were
responsible  for both his confinement and the interference with his
press  contacts, all on account of the content of his speech.


B. Procedural Background


On July 2, 1990, Mr. Kimberlin filed his original complaint  against
Mr. Quinlan and Mr. Miller in their individual capaci- ties, the
Federal Bureau of Prisons, and the United States  Government. In the
instant case, all that is before the court  is Mr. Kimberlin's claim
that Mr. Quinlan and Mr. Miller  violated Mr. Kimberlin's First
Amendment rights.


Appellants first moved to dismiss or for summary judgment  on September
27, 1990, arguing, inter alia, that: (1) Mr.  Kimberlin failed to meet
the D.C. Circuit's "heightened plead- ing" standard which was then
being applied to assess motive- based civil rights claims against
government officials; (2)  there was no violation of clearly
established law, and, thus,  appellants were entitled to qualified
immunity; and (3) even if  the law were clear, appellants' conduct was
objectively rea- sonable. The District Court denied appellants'
asserted qual- ified immunity on the First Amendment claim, finding
both  that Mr. Kimberlin's pleading was sufficient under the height-
ened pleading standard and that there was a clearly estab- lished
First Amendment right for prison inmates to "be free  from
governmental interference with their contacts with the  press if that
interference is based on the content of their  speech or proposed


Appellants appealed only the trial court's decision regard- ing the
heightened pleading standard. This court reversed,  see Kimberlin, 6
F.3d at 797-98, but the Supreme Court  vacated our decision in light
of Johnson, 515 U.S. at 304, and  remanded the case for further
proceedings. See Kimberlin,  515 U.S. at 322. This court then remanded
the case to the  District Court.


Discovery proceeded in the District Court, and, after com- pletion of
discovery, appellants moved to dismiss or for  summary judgment on the
same grounds rejected by the  District Court in Kimberlin I. Pending
the matter's disposi- tion, however, the Supreme Court rejected this
court's height- ened pleading standard for civil rights suits against
govern- ment officials. See Crawford-El v. Britton, 523 U.S. 574 
(1998). Thus, appellants' only remaining arguments were  that the law
regarding prisoners' First Amendment rights  was not clearly
established and that, even if it were, appel- lants' conduct was
objectively reasonable.


On October 21, 1998, the District Court issued the decision  that is
the subject of the current appeal. The District Court  denied
appellants' claim of qualified immunity, holding that 


the "law-of-the-case," unchallenged on the first appeal, was  that a
prisoner's right not to have his contact with the press  interfered
with on the basis of the content of his communica- tion was clearly
established at the time of the alleged viola- tions. See Kimberlin II
at 6, reprinted in J.A. 29. This  appeal followed.


II. ANALYSIS


A. The Law-of-the-Case Doctrine


The law-of-the-case doctrine rests on a simple premise:  "the same
issue presented a second time in the same case in  the same court
should lead to the same result." LaShawn A.  v. Barry, 87 F.3d 1389,
1393 (D.C. Cir. 1996) (en banc).  Accordingly, a "legal decision made
at one stage of litigation,  unchallenged in a subsequent appeal when
the opportunity to  do so existed, becomes the law of the case for
future stages of  the same litigation, and the parties are deemed to
have  waived the right to challenge that decision at a later time." 
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc.,  810 F.2d
243, 250 (D.C. Cir. 1987). The law-of-the-case may  be revisited only
if there is an intervening change in the law  or if the previous
decision was "clearly erroneous and would  work a manifest injustice."
LaShawn A., 87 F.3d at 1393  (internal quotation marks omitted).


Our dissenting colleague misconstrues the posture of this  appeal by
suggesting that the law-of-the-case doctrine is  inapplicable to the
instant case. In this case, we are called  upon to review the
propriety of the District Court's applica- tion of the
law-of-the-case. Thus, there is no occasion to  invoke the so-called
"derivative waiver" doctrine. Crocker v.  Piedmont Aviation, Inc., 49
F.3d 735 (D.C. Cir. 1995), sug- gests nothing to the contrary. The
derivative waiver princi- ple described in Crocker applies where a
party fails to appeal  an appealable issue and then raises the issue
for the first time  in a subsequent appeal. See id. at 739-40. In that
circum- stance, neither the District Court nor the appellate court has
 the opportunity to apply the law-of-the-case. Here, appel- lants
failed to appeal an appealable issue and then raised the 


issue for a second time before the District Court. Therefore,  we must
determine whether the District Court correctly  applied its
established law-of-the-case. Prior opinions of this  court make it
clear that, in a situation such as the one raised  in the case at bar,
notions of derivative waiver do not come  into play. See, e.g., Palmer
v. Kelly, 17 F.3d 1490, 1494 (D.C.  Cir. 1994) (reviewing the District
Court's decision to apply  law-of-the-case for error); Williamsburg
Wax Museum, 810  F.2d at 250-51 (same).


We also not that, even were the dissent correct in suggest- ing that
the "derivative waiver" doctrine applies here, "discre- tion to waive
a waiver is normally exercised only in exception- al circumstances,
where injustice might otherwise result."  Crocker, 49 F.3d at 740
(internal quotation marks omitted).  There are no "exceptional
circumstances" justifying any waiv- er here.


Application of the law-of-the-case doctrine is a two-step  process: A
court must first determine whether the threshold  requirements are met
and then ask whether there are pru- dential reasons to ignore the
applicable law-of-the-case. The  threshold requirements for
application of the law-of-the-case  doctrine are plainly met in the
instant case. In Kimberlin I,  the District Court ruled adversely to
appellants on the clearly  established law issue. Appellants did not
challenge the clear- ly established law in their Kimberlin I appeal,
although they  concede that this issue was appealable. In an effort to
avoid  the obvious, appellants make two arguments against applica-
tion of the law-of-the-case doctrine: first, they claim that  there
has been an intervening change in the law that justifies  prudential
departure from the law-of-the-case; and, second,  they contend that
the doctrine should not apply to qualified  immunity appeals. These


Appellants argue that intervening law has "evolved" since  Kimberlin I.
See Reply Br. at 9. On this point, appellants  cite the Supreme
Court's decision in Sandin v. Conner, 515  U.S. 472 (1995), which
narrowed the availability to prisoners  of due process challenges to
disciplinary segregation. This 


argument does not hold water. First, without regard to  Sandin's
specific holding, the District Court in Kimberlin I  was required to
decide what law was clearly established in  1988. Sandin, announced in
1995, is not relevant to what law  was clearly established seven years
earlier.


Furthermore, Sandin does not mark a change in the law  relevant to this
case. Sandin only establishes that a prison- er's segregation from the
rest of the prison population will  trigger the procedural
requirements of the Due Process  Clause when the segregation falls
outside the "range of  confinement to be normally expected." 515 U.S.
at 487.  Sandin did not change the law regarding whether a prison 
official violates a prisoner's rights under the First Amend- ment by
segregating the prisoner because of the content of a  prisoner's
communications with the media. Indeed, the Court  in Sandin made it


[p]risoners ... retain other protection from arbitrary  state action
even within the expected conditions of con- finement. They may invoke
the First and Eighth  Amendments and the Equal Protection Clause of
the  Fourteenth Amendment where appropriate, and may  draw upon
internal prison grievance procedures and  state judicial review where
available.


Id. at 487 n.11 (emphasis added). Here, then, even if Mr.  Kimberlin's
administrative segregation fell within the expect- ed range of his
sentence, Sandin recognizes that Mr. Kimber- lin's administrative
segregation still may allege that such  segregation violated the First
Amendment. Thus, there was  no change in the applicable law that might
have led the  District Court to revisit Kimberlin I.


Nor is there any weight to appellants' assertion that the 
law-of-the-case doctrine is inapplicable to qualified immunity 
appeals. Appellants rely heavily on Behrens v. Pelletier, in  which
the Supreme Court acknowledged that qualified immu- nity issues may
require more than one "judiciously timed  appeal." 516 U.S. 299, 309
(1996) (internal quotation marks  omitted). This is so, the Court
explained, because "the  legally relevant factors ... will be


judgment than on an earlier motion to dismiss. At that  earlier stage,
it is the defendant's conduct as alleged in the  complaint that is
scrutinized for 'objective legal reasonable- ness.' " Id. On this
analysis, the defendant in Behrens did  not waive any arguments in his
first appeal, so the situation  in that case did not call into play
the law-of-the-case doctrine.  And Behrens certainly does not say that
the traditional law- of-the-case doctrine is inapplicable to cases
involving claims of  qualified immunity.


Furthermore, appellants cite nothing to indicate that the  relevant
facts have somehow changed so that the District  Court's opinion in
Kimberlin I regarding the clearly estab- lished law is now somehow
diminished. Appellants address  disputed facts only in connection with
their claim that their  conduct was objectively reasonable. See Br.
for Appellants at  22-27; 28-36. However, in advancing this argument,
they  tellingly acknowledge that the issue of what was clearly 
established law at the time of the alleged violation is a legal 
determination that does not depend on the evidence in dis- pute. In
short, appellants' attempt to draw sustenance from  Behrens is


Finally, it is noteworthy that appellants incorrectly frame  the
relevant "law" for which the court must determine what  was clearly
established when. Appellants ask whether Mr.  Kimberlin had either an
"unfettered clearly established right  of access to the press" or "a
clearly established right not to  be placed in administrative
detention." Br. for Appellants at  2. These are the wrong questions.
The proper question in  this case, as the District Court correctly
noted, is whether  Mr. Kimberlin had a clearly established right "to
be free from  governmental interference with [his] contacts with the
press  if that interference is based on the content of [his] speech or
 proposed speech." Kimberlin I, 774 F. Supp. at 3-4. This  right
without doubt was clearly established in 1988. See  Turner v. Safley,
482 U.S. 78, 90 (1987) ("We have found it  important to inquire
whether prison regulations restricting  inmates' First Amendment
rights operated in a neutral fash- ion, without regard to the content
of the expression."); Pell v.  Procunier, 417 U.S. 817, 828 (1974)


restriction on inmates' communication "operates in a neutral  fashion,
without regard to the content of the expression," it  will not violate
First Amendment).


B. Disputed Issues of Fact


The District Court rested the decision under review on the 
law-of-the-case. Finding that appellants had waived any  challenge to
the judgement in Kimberlin I on the established  law, the trial court
reasoned that summary judgment on  grounds of qualified immunity was
inappropriate. This ap- proach fell short of what is required by
Crawford-El, 523  U.S. at 600. In particular, the District Court
failed to  consider whether there are disputed issues of fact as to 
whether appellants violated clearly established law by inten- tionally
segregating Mr. Kimberlin or interfering with his  press contacts on
account of the content of his speech.


At oral argument, counsel for appellee urged that one line  in the
District Court's order suggests that the court did  indeed weigh the
evidence regarding the defendants' intent.  See Kimberlin II at 4,
reprinted in J.A. 27. We are unim- pressed, for counsel's argument
clearly is a stretch and it  does not reach the desired mark. The
reference cited by  counsel is to the decision in Kimberlin I, in
which the trial  court admittedly conducted an analysis of the record
then  before it. See 774 F. Supp. at 6-8. However, discovery has 
continued since Kimberlin I, and there is nothing in Kimber- lin II
that addresses the current record.


We therefore remand this matter to the District Court for 
consideration of whether there are disputed issues of material  fact
regarding the defendants' motivation. In so doing, the  District Court
must ask whether Mr. Kimberlin has identified  "affirmative evidence
from which a jury could find that the  plaintiff has carried his or
her burden of proving the perti- nent motive." Crawford-El, 523 U.S.


The District Court will have two principal considerations at  the
forefront upon remand. First, the District Court is not  foreclosed
from issuing a summary judgment for appellants  merely because Mr.
Kimberlin's claim rests on appellants' 


motive. It is true that "objective" issues such as whether the 
plaintiff suffered an injury or engaged in protected conduct  are
"more amenable to summary disposition than disputes  about the
official's intent." Id. at 599. Nonetheless, the  Supreme Court has
expressed faith in the experience of  District Court judges to manage
cases involving allegations of  improper intent in a way that will
allow for summary judg- ment in appropriate cases. Indeed, this
expressed faith laid  the foundation for the Court's rejection of the
so-called  "heightened pleading" standard in civil rights actions
against  government officials. See id. at 600-01.


Second, even if appellants provide an objectively valid  reason for
their actions in this case, the District Court must  still inquire
into whether there is a disputed issue of fact as to  whether
appellants were actually motivated by an illegitimate  purpose. The
opinion for the Court in Crawford-El specifi- cally rejected the
dissent's proposal to "immunize all officials  whose conduct is
'objectively valid,' regardless of improper  intent." Id. at 593-94.
Moreover, in considering any objec- tively valid reasons offered by
appellants, the District Court  should be mindful of the Supreme
Court's recent decision in  Wilson v. Layne, 119 S. Ct. 1692 (1999).
In Wilson, the  Court described the "objectively reasonable" aspect of
the  qualified immunity defense as "whether a reasonable officer 
could have believed that bringing members of the media into  a home
during the execution of an arrest warrant was lawful,  in light of
clearly established law and the information the  officers possessed."
Id. at 1700. The analogous question in  this case has already been
answered: the District Court has  found that no reasonable prison
official could believe that  interfering with an inmate's access to
the press because of the  content of the inmate's speech could be
lawful. The District  Court must now weigh the evidence to determine
if there are  disputed issues of fact as to whether appellants were


Upon resolving these questions, the District Court will  either issue a
summary judgment for appellants or proceed to  hear the case on the
merits. The second possibility will  result in an interlocutory order
which will not be subject to 


immediate review. See Johnson, 515 U.S. at 313-18. Non- final qualified
immunity determinations are appealable "when  they resolve a dispute
concerning an abstract issue of law  relating to qualified
immunity--typically, the issue whether  the federal right allegedly
infringed was clearly established."  Behrens, 516 U.S. at 313
(internal quotation marks omitted)  (citing Johnson, 515 U.S. at 317).
When the law and fact  issues are not separable, however, a very
different situation  arises:


Many constitutional tort cases, unlike the simple "we  didn't do it"
case before us, involve factual controversies  about, for example,
intent--controversies that, before  trial, may seem nebulous. To
resolve those controver- sies--to determine whether there is or is not
a triable  issue of fact about such a matter--may require reading a 
vast pretrial record, with numerous conflicting affidavits, 
depositions, and other discovery materials.


Johnson, 515 U.S. at 316. The "upshot," according to the  Court, "is
that ... considerations of delay, comparative ex- pertise of trial and
appellate courts, and wise use of appellate  resources argue in favor
of limiting interlocutory appeals of  'qualified immunity' matters to
cases presenting more ab- stract issues of law." Id. at 317. The
District Court's  original decision that Mr. Kimberlin's First
Amendment  rights were clearly established at the time of the alleged 
violation was immediately appealable, because the disputed  issue
involved an "abstract" issue of law. Whether there is a  disputed
issue of material fact regarding appellants' intent,  however, is not
"separable" from Mr. Kimberlin's underlying  cause of action; in fact,
it is part and parcel of his claim.


Moreover, this court has interpreted Behrens and Johnson  to draw a
clear distinction between the availability of appel- late review in
qualified immunity cases involving pure legal  issues and those
involving disputed issues of fact:


In the qualified immunity arena, the Supreme Court has  drawn a
distinction between two categories of cases, only  one of which merits
immediate appellate review: an  interlocutory decision that rests upon
the purely legal 


question of whether or not an official's actions violate  clearly
established law does satisfy the Cohen criteria,  while an
interlocutory decision that denies summary  judgment because of the
presence of triable issues of fact  does not.


Meredith v. Federal Mine Safety & Health Review Comm'n,  177 F.3d 1042,
1048-49 (D.C. Cir. 1999) (citations omitted);  see also Farmer v.
Moritsugu, 163 F.3d 610, 613-14 (D.C.  Cir. 1998) (distinguishing
interlocutory appeals of qualified  immunity raising abstract legal
issues from appeals challeng- ing the sufficiency of the evidence).


Thus, if the District Court, on remand, denies summary  judgment on the
issue of appellants' intent, the matter will  not be subject to
immediate appeal.


III. CONCLUSION


For the reasons articulated herein, the case is remanded to  the
District Court for further proceedings consistent with this 


Karen LeCraft Henderson, Circuit Judge, dissenting in part:


I dissent from the majority's holdings that (1) the law of  the case
doctrine bars review of the district court's determi- nation that the
applicable law was clearly established at the  time of the alleged
constitutional deprivation and (2) that the  case must be remanded to
determine whether the appellants'  conduct violated clearly
established law. In my view, law of  the case does not apply, the
applicable law was clearly  established and the appellants' conduct,
as revealed in the  record, did not violate the clearly established
law. Accord- ingly, I would hold that the appellants are entitled to
qualified  immunity and remand for entry of judgment in their favor.


First, I disagree with the majority's contention that the  appellants'
failure in their first appeal to challenge the district  court's
ruling that the relevant law was clearly established  made that ruling
the "law of the case" precluding the appel- lants from arguing
otherwise now. As this court explained in  Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735 (D.C. Cir.  1995), "law-of-the-case
doctrine holds that decisions rendered  on the first appeal should not
be revisited on later trips to the  appellate court." 49 F.3d at 739.
In other words, law of the  case applies where "the first appeals
court has affirmatively  decided the issue, be it explicitly or by
necessary implication."  Id. Because this court did not decide the
clearly established  law issue in the 1992 appeal, we here confront
not law of the  case but an "analytically distinct principle ...--best
under- stood as a species of waiver doctrine" which "does not involve 
any previous appellate court decision on the barred issue" but 
imposes a "bar on raising issues omitted from prior appeals."  Id.
Under this waiver principle, " 'a legal decision made at  one stage of
litigation, unchallenged in a subsequent appeal  when the opportunity
to do so existed, [governs] future stages  of the same litigation, and
the parties are deemed to have  waived the right to challenge that
decision at a later time.' "  Id. (quoting Williamsburg Wax Museum,
Inc. v. Historic  Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987);
citing  Palmer v. Kelly, 17 F.3d 1490, 1495-96 (D.C. Cir. 1994); 
Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90  (D.C. Cir.




__________

n 1 In Palmer, this court applied the waiver theory (albeit under  the
"law of the case" rubric) in the same circumstances we have 


bars appeal of the clearly established law determination here.


As the court in Crocker noted, "neither law-of-the-case  doctrine
proper nor th[e] subsidiary waiver principle is an  absolute
preclusion to appellate review." Id. Each of these  principles is
"prudential" and admits of exceptions "broader  than for conventional
issue or claim preclusion" but the  preclusive effect of waiver is
"one notch weaker" than that of  law of the case. Id. In the case of
waiver, "the appellate  court, for example, always possesses
discretion to reach an  otherwise waived issue logically 'antecedent
to and ultimately  dispositive of the dispute before it.' " Id. at 740
(quoting  "United States Nat'l Bank of Oregon v. Independent Ins. 
Agents of Am., 508 U.S. 439, 447 (1993)).


In Insurance Agents, the United States Supreme Court  held this court
had not abused its discretion in deciding an  issue first raised in
supplemental post-argument briefing,  although the appellants had
failed to raise it in either their  opening or reply brief before
argument. The Court so held  because the neglected issue--whether a
statute had been  repealed--was "antecedent to" and "dispositive of"
the ques- tion addressed in the opening brief--how the provision
should  be construed. While the circumstances here (two separate 
appeals) are somewhat different from those in Insurance  Agents (a
single appeal with post-argument supplemental  briefing), the same
reasoning applies. Whether the law was  clearly established is
"antecedent to" and, if decided in the  appellants' favor,
"dispositive of" the issue argued in the 1992  appeal: whether the
appellants in fact violated the law. If  the law was not clearly
established then it is irrelevant  whether or not the appellants
violated the law because they  were shielded by qualified immunity and
therefore entitled to  judgment as a matter of law. See Behrens v.
Pelletier, 516  U.S. 299, 306 (1996) ("Unless the plaintiff's
allegations state a  claim of violation of clearly established law, a




__________

n here--where the district court concluded its earlier unappealed 
decision was law of the case. See 17 F.3d at 1495-96 (defendant 
"waived" claim through "failure to appeal on alternative grounds" in 
earlier appeal).


pleading qualified immunity is entitled to dismissal before the 
commencement of discovery.") (quoting Mitchell v. Forsyth,  472 U.S.
511, 526 (1985)). Given the strong policy favoring an  official's
"entitlement not to stand trial or face the other  burdens of
litigation," Mitchell v. Forsyth, 472 U.S. 511, 526  (1985), we should
exercise our discretion here and decide  whether the law was clearly
established at the time of the  alleged violation. I conclude that it


Case law from the Supreme Court, as well as from circuit  courts
including this one, make it clear that the right identi- fied by the
district court--federal inmates' "First Amendment  right to be free
from governmental interference with their  contacts with the press if
that interference is based on the  content of their speech or proposed
speech right of federal  prisoners," 774 F. Supp. at 3-4--was well
established at the  time of the alleged violation in November 1988.
See  Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en 
banc) ("[I]n light of Turner [v. Safley, 482 U.S. 78 (1987)] and 
related cases, retaliation against Crawford-El for criticism of  the
prison administration that was truthful, and not otherwise  offensive
to some penological interest (so far as appears),  would have violated
a clearly established right of which a  reasonable prison official
would have known.") (citing Picker- ing v. Board of Educ., 391 U.S.
563, 568, 571-72 (1968)),  vacated on other ground, 523 U.S. 574
(1998); Murphy v.  Missouri Dep't of Correction, 769 F.2d 502, 503
(8th Cir.  1985) ("While a prisoner enjoys no constitutional right to 
remain in a particular institution and generally is not entitled  to
due process protections prior to such a transfer, prison  officials do
not have the discretion to punish an inmate for  exercising his first
amendment rights by transferring him to  a different institution.")
(citing Garland v. Polley, 594 F.2d  1220, 1222-23 (8th Cir. 1979))
(internal citations omitted);  Main Rd. v. Aytch, 522 F.2d 1080,
1086-87 (3d Cir. 1975)  ("Even if the prisoners held pending trial
have no constitu- tional right to meet with reporters, the First
Amendment  precludes Aytch from regulating, through the grant or
denial  of permission for prisoners to talk with reporters, the
content  of speech which reaches the news media, unless the restric-


tion bears a substantial relationship to a significant govern- mental
interest."). I therefore concur--albeit on a different  ground--in the
majority's affirmance of the district court's  holding that the law
was clearly established. I disagree,  however, with the majority's
decision to remand in order to  determine whether the appellant's
conduct violated the clear- ly established law.


Although the district court's order does not expressly ad- dress
whether the evidence, viewed most favorably to Kim- berlin, makes out
a constitutional deprivation, the issue is  nevertheless properly
before this court. The appellants' sum- mary judgment motion below
expressly argued the issue, see  Kimberlin v. Quinlan, No. 90-1549,
Memorandum in Support  of Summary Judgment Motion at 16-29 (filed Feb.
3, 1997),  and the district court, in denying the summary judgment 
motion, at least implicitly resolved it in Kimberlin's favor.  Thus,
"there is no apparent impediment to [the argument]  being raised on
appeal." Behrens v. Pelletier, 516 U.S. 299,  313 (1996) (authorizing
appeal where argument "was present- ed by the petitioner in the trial
court" and "the District  Court's denial of petitioner's summary
judgment motion nec- essarily determined that certain conduct
attributed to peti- tioner ... constituted a violation of clearly
established law,"  notwithstanding that "the District Court, in
denying petition- er's summary judgment motion, did not identify the
particular  charged conduct that it deemed adequately supported"). We 
should therefore address the question now,2 without remand,  and we




__________

n 2 Appeal of this issue is not barred under Johnson v. Jones, 515 
U.S. 304, 319 (1995), which held that no appeal lies "if what is at 
issue in the sufficiency determination is nothing more than whether 
the evidence could support a finding that particular conduct oc-
curred." Behrens, 516 U.S. at 313. Here, the issue is, as in  Behrens,
whether "the conduct which the District Court deemed  sufficiently
supported for purposes of summary judgment met the  Harlow standard of
'objective legal reasonableness.' " Id.; see also  Farmer v.
Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998) (permit- ting immediate
appeal where case " 'concern[s], not which facts the  parties might be
able to prove, but, rather, whether or not certain 


As the district court did not identify what the evidence  reveals the
appellants did, it is this court's "task" to under- take a " 'review
of the record to determine what facts the  district court, in the
light most favorable to the nonmoving  party, likely assumed.' "
Behrens, 516 U.S. at 313 (quoting  Johnson, 515 U.S. at 319). The
uncontroverted facts establish  that appellant Quinlan canceled the
press conference because  it was not authorized under Bureau of
Prisons policy and  ordered Kimberlin's first administrative
segregation for the  purpose of ensuring Kimberlin's safety. No
evidence sug- gests that Quinlan undertook these acts with intent to
pre- vent Kimberlin from reporting his story to the press, which 
Kimberlin had in fact already done in an interview with NBC  News
which Quinlan had himself facilitated. Nor is there  evidence that
Quinlan was at all involved in the two subse- quent segregations on
November 7 and December 22, 1988.  As for appellant Miller, the record
does not indicate that he  made any effort in his telephone
conversations with the  Bureau of Prisons either to get the press
conference canceled  or to secure Kimberlin's confinement. Because the
appel- lants' conduct as revealed by the record, viewed in the light 
most favorable to the plaintiff, did not violate Kimberlin's  First
Amendment rights (clearly established or otherwise),  both are
entitled to qualified immunity. See Siegert v. Gilley,  500 U.S. 226
(1991) (defendant entitled to qualified immunity  where plaintiff "not
only failed to allege the violation of a  constitutional right that
was clearly established at the time of  the [defendant's] action, but
... failed to establish the viola- tion of any constitutional right at


For the foregoing reasons, I would remand with direction  to enter
summary judgment for the appellants.




__________

n given facts show[ ] a violation of "clearly established" law' ")
(quot- ing Johnson, 515 U.S. at 311) (alterations original).