                                                                          [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                            FILED
                               ________________________                 U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                                                             December 8, 2006
                                      No. 06-11381                          THOMAS K. KAHN
                                ________________________                        CLERK

                          D. C. Docket No. 03-03002-CV-CAP-1

RICHARD KJELLSEN,

                                                                             Plaintiff-Appellee,

                                              versus

TERRY MILLS,
WILLIAM H. WALL, et al.,

                                                                       Defendants-Appellants.
                                 _______________________

                       Appeal from the United States District Court
                          for the Northern District of Georgia
                            _________________________

                                      (December 8, 2006)


Before BIRCH and BLACK, Circuit Judges and MILLS,* District Judge.

PER CURIAM:




       *
           Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
       Defendants-Appellants Mills, Wall, Callahan, Brown and Herrin

(Appellants) appeal the district court’s ruling on summary judgment denying them

qualified immunity.1 In particular, Appellants challenge the district court’s finding

that they provided insufficient evidence that the alleged unconstitutional actions

were within their discretionary authority.2 Based on the evidence set forth in the

Appellants’ motion for summary judgment and their briefs on appeal, the district

court was correct in finding they presented insufficient evidence that the alleged

unconstitutional actions were within their discretionary authority. We remand the

case for further consideration of the Appellants’ motion for summary judgment,

however, because, although not presented to either the district court or this Court,

there is relevant evidence in the record, in the form of depositions, as to whether

Appellants acted in their discretionary capacities. We conclude these depositions

need to be fully briefed to and analyzed by the district court.




       1
          This Court only has jurisdiction over the denial of qualified immunity on interlocutory
appeal. See Mitchell v. Forsyth, 105 S. Ct. 2806, 2817 (1985) (holding that a district court’s
denial of a claim of qualified immunity is an appealable final decision so long as it turns on a
question of law). We do not address any of the district court’s other rulings on summary
judgment.
       2
          The Plaintiff-Appellee, Richard Kjellsen, alleges the Appellants knowingly failed to
report mitigating evidence in the form of several blood tests, which were below the legal level
for a per se driving under the influence violation. Kjellsen alleges this failure to report resulted
in violations of both his Fourth and Sixth Amendment rights.

                                                  2
                             I. STANDARD OF REVIEW

         This Court conducts de novo review on an interlocutory appeal from the

denial of qualified immunity. Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir.

2005). When reviewing a denial of summary judgment on grounds of qualified

immunity on interlocutory appeal, this Court takes the facts in the light most

favorable to the plaintiff. Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir.

2005).

                                   II. DISCUSSION

         In order to be eligible for summary judgment on grounds of qualified

immunity, the Appellants must have been engaged in a discretionary function.

Hollman v. Harland, 370 F.3d 1252, 1263–64 (11th Cir. 2004). The Appellants

have the burden to make this showing. Storck v. City of Coral Springs, 354 F.3d

1307, 1314 (11th Cir. 2003).

         In the qualified immunity context, a discretionary function includes actions

that “are of a type that fell within the employee’s job responsibilities.” Hollman,

370 F.3d at 1265. This Court asks whether the government employee was

(1) performing a legitimate job-related function (pursuing a job-related goal)

(2) through means that were within her power to utilize. Hill v. Dekalb Reg’l

Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th Cir. 1994).



                                            3
      In applying the above test, the most difficult task is characterizing a

defendant’s conduct. If framed too narrowly, such as whether it was within a

defendant’s discretion to violate a plaintiff’s constitutional rights, “the inquiry is

no more than an untenable tautology.” Hollman 370 F.3d at 1266. If framed too

generally, such as whether it was within a defendant’s discretion to perform acts to

further the public interest, then every act performed by a government employee

would qualify. Id. The test developed by this Circuit is to characterize a

government official’s actions “at the minimum level of generality necessary to

remove the constitutional taint.” Id. Therefore, applied to this case, we should not

ask whether the Appellants had the right to wrongfully withhold mitigating

evidence from the prosecutor and the court; rather, this Court should ask whether

the Appellants had the power to withhold test results for any reason.

      Appellants presented only their individual declarations in both their motion

for summary judgment and their brief on appeal to support their claims for

summary judgment. The district court correctly indicated that “there must be more

than a bald assertion by the defendant that the complained-of actions were

undertaken pursuant to the performance of his duties within the scope of his

discretionary authority; there must be a showing by competent summary judgment

materials of objective circumstances that would compel that conclusion . . . .”



                                            4
Harbert Int’l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Appellants did

not present such evidence in their motion for summary judgment or their briefs.

       Such evidence existed, however, in the record.3 Appellants filed, although

they did not reference, their depositions and the deposition of Amy Burden, the

analyst who conducted the tests on the plaintiff’s blood. In these depositions, the

Appellants and Amy Burden describe the Georgia Bureau of Investigation’s (GBI)

procedures for the analysis of blood-alcohol levels in blood samples. The

Appellants should more fully brief and the district court should analyze this

evidence on remand.

       Several examples of the deposition testimony may be illustrative. For

instance, in Deputy Director Terry Mills’s deposition, he stated that “not

necessarily all data is reported in any conclusion that any scientist gives anywhere

in the world.” In addition, Mills stated that the allegedly mitigating results in this

case “had nothing to do with the issue of whether or not the results were the same”

but were tested for other reasons. In more detail, Deputy Director Lisa Callahan

testified that “[i]f the results are consistent then it’s left up to the analyst to decide



       3
         The depositions were filed on the same day as the motion for summary judgment, but
Appellants’ motion for summary judgment never analyzed or even mentioned the depositions in
reference to the issue of qualified immunity even though the district court had already found
there was insufficient evidence on the discretionary function issue when it denied Appellants’
motion to dismiss.

                                               5
whether or not to report those findings.” Deputy Director George Herrin likewise

stated that he “would expect an analyst, any analyst to report a result which was

inconsistent with their original test. If they had a consistent result with the original

test then [he] think[s] it would be at their discretion.” For Herrin, “results which

are consistent then, you know they’re either going to be consistently exculpatory or

consistently inculpatory . . . .”

       Consistent results, for the GBI employees, have a scientific meaning.

Deputy Director Herrin “consider[s] it scientific knowledge . . . if two results are

consistent based upon the knowledge of that particular discipline. . . .” According

to Herrin, the analyst will “make a call whether or not their answers are

consistent.” Dr. Robert Brown, the GBI’s expert on blood-alcohol testing and

Amy Burden’s supervisor, believes the analyst uses her “judgment, knowledge and

skills to determine what’s an acceptable product or not.” For a blood-alcohol

sample generally, Dr. Brown testified that the “general trend is decreasing

(amounts) through time.” For Dr. Brown, knowledge of this general decrease,

which he has seen as much as a .03 decrease in a given sample, must be

incorporated into an analyst’s judgment when determining whether the result is

consistent. Amy Burden acknowledged that “there could be a decrease based on

the volatility of the alcohol over time, over an extended period of time.”



                                            6
       The alleged mitigating tests in this case were also not run for the purpose of

verifying the original result. As Deputy Director Callahan testified, these tests

were run to determine whether the samples they were sending out for independent

testing were “suitable for testing.” Dr. Brown agreed, stating the tests “were not

run to be test results. These were run for something entirely different a year later.

It would not have been appropriate to” include them in the report.

       Based on the above examples, we conclude that even a cursory look at the

depositions provides relevant evidence as to whether the Appellants, in their role as

GBI employees, were (1) performing a legitimate job-related function (pursuing a

job related goal) (2) through means that were within her power to utilize. Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th Cir. 1994). Whether

there is sufficient evidence to prove the Appellants acted in their discretionary

function is best left to the district court on remand to further analyze the evidence.4

       Our determination in this case is informed by the Supreme Court’s policy of

deciding qualified immunity as early as possible in the proceedings. A ruling on

qualified immunity “should be made early in the proceedings so that the costs and

expenses of trial are avoided where the defense is dispositive.” Saucier v. Katz,


       4
          We do not, however, want to limit the district court to the depositions. If the district
court needs more discovery to make the qualified immunity determination, the district court
should allow more discovery limited to the issue of whether the Appellants acted in their
discretionary capacities.

                                                  7
121 S. Ct. 2151, 2156 (2001). Qualified immunity is not a defense to the merits of

the action, but a privilege not to be subject to the burdens of litigation and trial.

Mitchell v. Forsyth, 105 S. Ct. 2806, 2815 (1985). One of those burdens and

expenses is expansive discovery and preparation for trial. Id. As a result, the

Supreme Court has stressed repeatedly “the importance of resolving immunity

questions at the earliest possible stage in litigation.” Hunter v. Bryant, 112 S. Ct.

534, 536 (1991). We have concluded that relevant evidence exists as to whether

Appellants acted in their discretionary capacities, which was not presented to or

analyzed by the district court. We remand for a determination of whether such

evidence is sufficient to prevent these government officials from facing the

burdens and expenses associated with full discovery, preparation for trial, and the

trial itself.

                                  III. CONCLUSION

        Although the Appellants failed to present sufficient evidence that they acted

in their discretionary capacities in their briefs to this Court and their motion for

summary judgment in the district court, such evidence exists in the record. The

district court was correct in finding there was insufficient evidence based on what

Appellants presented to it on summary judgment. We remand, however, because

of the importance of deciding issues of qualified immunity as early as possible in a



                                            8
proceeding and because evidence exists in the record that should be more fully

briefed to and analyzed by the district court.

      REMANDED.




                                           9
