PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAMONT JUARQUES BAIRD,
Plaintiff-Appellant,

v.

JOSEPH D. PALMER, in his individual
capacity,
Defendant-Appellee,

and

BUNCOMBE COUNTY, a North
Carolina Body Corporate and
Politic; CHARLES H. LONG, in his
official capacity as former
Buncombe County Sheriff; RICK
RADCLIFF, in his official capacity as
Deputy Sheriff of Buncombe
                                        No. 96-7344
County; STEVE MYERS, in his official
capacity as Deputy Sheriff of
Buncombe County; KEN LANCE, in
his official capacity as Deputy
Sheriff of Buncombe County; SAM
EVANGELOU, in his official capacity
as Deputy Sheriff of Buncombe
County; CITY OF ASHEVILLE, NORTH
CAROLINA, a North Carolina
Municipal Corporation; JOSEPH D.
PALMER, in his official capacity as
an Asheville Police Officer;
RELIANCE INSURANCE COMPANY,
INCORPORATED,
Defendants.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-95-63-1)

Argued: April 10, 1997

Decided: June 3, 1997

Before WILKINSON, Chief Judge, and HAMILTON and
MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by published opinion. Judge Hamilton wrote the opinion,
in which Chief Judge Wilkinson and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Howard C. McGlohon, Asheville, North Carolina, for
Appellant. Frank Parrott Graham, ROBERTS & STEVENS, P.A.,
Asheville, North Carolina, for Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

The issue in this case is whether we have jurisdiction to hear the
appeal of a grant of summary judgment in favor of a defendant on the
basis of qualified immunity, where claims remain pending in the dis-
trict court. Concluding that we lack jurisdiction in such circum-
stances, we dismiss the appeal.

I.

This suit arises out of the warrantless detention of Appellant
Lamont Baird (Baird) on February 26, 1994, initially on suspicion of

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armed robbery and, later, on suspicion of murder. Baird was released
approximately six hours after he was detained when he was cleared
of any suspicion of wrongdoing.

As a result of his detention, Baird filed suit on February 27, 1995
in the United States District Court for the Western District of North
Carolina against Buncombe County, North Carolina; the former sher-
iff of Buncombe County and various deputy sheriffs; the City of
Asheville, North Carolina; and Joseph D. Palmer (Palmer), individu-
ally and in his official capacity as an Asheville City Police Officer.
Baird brought his suit pursuant to 42 U.S.C. §§ 1981, 1983, and 1985,
alleging that the defendants violated his rights under the Fourth, Fifth,
and Fourteenth Amendments to the United States Constitution. In
addition, Baird asserted causes of action based on state law for assault
and battery, intentional infliction of emotional distress, intentional
infliction of pain and suffering, invasion of privacy, and false impris-
onment and false arrest.

On May 28, 1996, Palmer, in his individual capacity, filed a motion
for summary judgment in which he asserted that he was entitled to
qualified immunity. On July 24, 1996, the district court granted Palm-
er's motion for summary judgment in his individual capacity and
entered an order dismissing Palmer as a defendant, in his individual
capacity. Baird noted a timely appeal. In response to Baird's appeal,
the district court entered an order on August 27, 1996, staying all
pending matters in the case, including motions for summary judgment
filed by Baird and the remaining defendants, pending our resolution
of this appeal.

II.

As a court of limited jurisdiction, we must ensure that we have
jurisdiction to hear each appeal that is filed, doing so on our own
motion if necessary. See Winfrey v. School Bd. of Dade County, 59
F.3d 155, 157 (11th Cir. 1995). Under 28 U.S.C.§ 1291, federal
appellate courts have jurisdiction over appeals from all "final deci-
sions" of the district courts of the United States. See 28 U.S.C.
§ 1291. This finality requirement serves the dual purpose of avoiding
undue delay in the ultimate resolution of disputes and preserving "the
primacy of the district court as the arbiter of the proceedings before

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it." MDK, Inc. v. Mike's Train House, Inc. , 27 F.3d 116, 119 (4th Cir.
1994).

Where a suit remains pending in the district court, an order dis-
missing one claim or defendant but not others ordinarily is not final.
See MDK, Inc., 27 F.3d at 119 (appellate review is generally limited
to those orders which end the litigation on the merits and leave noth-
ing for the court to do but execute the judgment); see also FED. R.
CIV. P. 54(b) (an order that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does not ordinar-
ily terminate the action). Federal Rule of Civil Procedure 54(b), how-
ever, provides that such an order may be immediately appealed if the
district court: (1) expressly directs entry of judgment as to those
claims or parties; and (2) expressly determines that there is no just
reason for delay. See id.; Winfrey, 59 F.3d at 157; see also Braswell
Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335-1336 (4th Cir.
1993) (discussing Rule 54(b) and the necessity of district court find-
ings to support a Rule 54(b) certification). In this case, the district
court neither expressly directed entry of judgment nor did it expressly
determine that there was no just reason for delay. Therefore, the dis-
trict court did not certify its order under Rule 54(b), and conse-
quently, Rule 54(b) does not provide us with a basis for jurisdiction
of this appeal.

Although the district court's order is not a "final order," this court
does have jurisdiction over interlocutory appeals of certain "collat-
eral" orders under the "collateral order doctrine." See Winfrey, 59
F.3d at 158; MDK, 27 F.3d at 120. Orders that may be immediately
appealed under this doctrine are orders "which finally determine
claims of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the
whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949). The collateral order doctrine, then, permits
the immediate appeal of "classes of orders in which the considerations
that favor immediate appeals seem comparatively strong and those
that disfavor such appeals seem comparatively weak." Johnson v.
Jones, 115 S. Ct. 2151, 2155 (1995). For example, the denial of a
motion to dismiss based on an immunity defense may be immediately
appealed, even where claims against other defendants remain pending

                     4
in the district court. See Mitchell v. Forsyth , 472 U.S. 511, 530
(1985). Such an order may be immediately appealed because, inter
alia, immunity is immunity from suit and not a mere defense to liabil-
ity; therefore, it is effectively lost if the party cannot appeal until after
the final order is entered. See id. at 525-27.

The Supreme Court recently articulated the requirements of the
collateral order doctrine in Johnson. See Johnson, 115 S. Ct. at 2155.
To be immediately appealable under the collateral order doctrine, an
order must: (1) conclusively determine the disputed question; (2)
resolve an important issue completely separate from the merits of the
action; and (3) be effectively unreviewable on appeal from a final
judgment. See id.; Legal Representative for Future Claimants v.
Aetna Cas. & Sur. Co. (In re: The Wallace & Gale Co.), 72 F.3d 21,
24 (4th Cir. 1995).

This circuit has not previously addressed whether an order dismiss-
ing claims against a defendant on the basis of immunity where other
claims remain pending in the district court may be appealed under the
collateral order doctrine. Other circuits, however, uniformly hold that
such an order does not satisfy the collateral order doctrine and may
not be immediately appealed. See, e.g., LaTrieste Restaurant & Caba-
ret, Inc. v. Village of Port Chester, 96 F.3d 598, 600 (2d Cir. 1996)
(qualified immunity); Winfrey, 59 F.3d at 158 (qualified immunity);
Branson v. City of Los Angeles, 912 F.2d 334, 335 (9th Cir. 1990)
(absolute immunity); Theis v. Smith, 827 F.2d 260, 261 (7th Cir.
1987) (absolute immunity); Thompson v. Betts, 754 F.2d 1243, 1246
(5th Cir. 1985) (absolute immunity); see also Clemens v. Kansas, 951
F.2d 287, 288 (10th Cir. 1991) (Eleventh Amendment immunity);
Franzen v. Federal Land Bank, 897 F.2d 973, 974 (8th Cir. 1990)
(finding that court lacked jurisdiction to hear appeal from an order
granting summary judgment based on absolute immunity where
claims against other parties remained pending). These courts reason
that, unlike a denial of summary judgment on the basis of immunity,
an order granting immunity from suit may be "fully and effectively
reviewed after final judgment." Branson, 912 F.2d at 335; see, e.g.,
LaTrieste, 96 F.3d at 599; Winfrey, 59 F.3d at 158. Therefore, the
third requirement of the collateral order doctrine--that the order be
effectively unreviewable on appeal from a final judgment--is not

                      5
met, and the collateral order doctrine does not confer appellate juris-
diction in these circumstances. See Branson, 912 F.2d at 335.

We agree with the reasoning of these decisions and hold that the
collateral order doctrine does not confer appellate jurisdiction over an
order dismissing claims against a defendant on the basis of qualified
immunity, where other claims remain pending in the district court. As
discussed above, the finality requirement contained in § 1291 serves
the important purpose of avoiding the piecemeal review of ongoing
district court proceedings. While the importance of avoiding multiple
appeals and any interference with district court proceedings may be
outweighed where an order will not be effectively reviewable follow-
ing final judgment, an order granting summary judgment on the basis
of qualified immunity may be fully reviewed after final judgment is
entered, removing a primary justification for permitting the immedi-
ate appeal. Because the third requirement for the application of the
collateral order doctrine is not satisfied by a non-final order granting
qualified immunity, such an order may not be immediately appealed
as a collateral order under Cohen.

III.

In this case, claims remain pending in the district court against all
other defendants to this action, including Palmer, in his official capac-
ity. Because the district court has not certified its order as final under
Rule 54(b) and because its order does not fall within the collateral
order doctrine, we lack jurisdiction to hear this appeal. Accordingly,
this appeal is dismissed.

DISMISSED

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