Hiroko Havekost David W. Sutton Ron Haglund Jerry Crowley v. United States Department of the Navy, and Jovito Banzon

Jovito Banzon defended this civil rights action on the basis of qualified immunity. He appeals the order which denied the defense, and we reverse.

At the time of the incident giving rise to this action, Banzon was the officer in charge of the commissary at the Puget Sound Naval Station (“Puget Sound”) in Bremerton, Washington. Plaintiff Hiroko Havekost worked as a grocery bagger in the commissary. When Banzon terminated her permission to work, Havekost sued Banzon in his individual capacity under the theory that Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), created a cause of action for violation of her speech rights under the first amendment. Because the facts establish that Banzon’s action did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known,” he has qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

Because a denial of summary judgment is not ordinarily a final decision within the meaning of 28 U.S.C. § 1291 (1988), the denial is usually not reviewable on appeal. Roth v. Veteran’s…