First Circuit Illustrates Scott v. Harris’s Two Effects on Civil Procedure

I recently wrote about the Seventh Circuit’s decision in Gant v. Hartman, which illustrated Scott v. Harris’s effect on interlocutory appeals. But that wasn’t Scott’s only impact on civil procedure. It has also affected summary-judgment practice. A recent decision from the First Circuit—Underwood v. Barrett—illustrates both of the procedural changes that Scott wrought. And while the changes to summary judgment are hard to avoid (despite a district court’s odd efforts to do so), I think Underwood spoke a bit too broadly about appellate jurisdiction.

The Decision in Underwood

In Underwood, the First Circuit reversed a district court decision that refused to apply Scott’s blatant-contradiction rule when deciding a request for qualified immunity. The case involved an altercation between a prison inmate and several prison officials. The inmate sued, alleging that the officials used excessive force, and the officials sought qualified immunity.

Underwood & Summary Judgment

Although a “compelling” video of the altercation existed, the district court refused to decide whether the video blatantly contradicted the plaintiff’s version of the facts. The district court instead “preferred the contrary view [of Scott] expressed in both Justice Stevens’s Scott dissent and in what the district court described as an ‘academic consensus’ favoring the dissent.” The First Circuit held that the district court wrongly refused to follow controlling precedent. The court of appeals accordingly vacated the denial of qualified immunity and—in a rebuke to the district court—remanded the case to a different district court judge.

The district court’s refusal to apply Scott’s blatant-contradiction rule to summary judgment—indeed, to instead apply the Scott dissent—was pretty indefensible. Scott held that when a video of events exists, courts should view the facts in the light depicted by the video.

This reliance on videos at summary judgment has been sharply criticized. And it likely exaggerates the objectivity of video evidence. (I linked to some scholarship on both of these points in my previous post.) But in a system of vertical stare decisis, a district court can’t reject a Supreme Court decision in favor of a dissent.

Underwood & Appellate Jurisdiction

The Underwood court also noted that it had jurisdiction to correct the district court’s refusal to apply Scott. And that’s probably correct. Mitchell v. Forsyth held that government officials can immediately appeal denials of qualified immunity under the collateral-order doctrine. Granted, Johnson v. Jones held that the scope of review in these appeals generally extends only to whether a clear constitutional violation occurred; appellate courts lack jurisdiction to review whether the summary-judgment record supports the district court’s assumed facts. But under the widely accepted reading of Scott, an exception to Johnson exists when something in the summary-judgment record blatantly contradicts those assumed facts.

Because the district court in Underwood denied qualified immunity while assuming facts that the record blatantly contradicted, the First Circuit had jurisdiction under Scott to reverse that denial.

Interlocutory Qualified-Immunity Appeals & “Issues of Law”

But the Underwood court might have spoken a bit too broadly about jurisdiction. Citing Ashcroft v. Iqbal, the First Circuit said that it could immediately review a district court decision that (1) turned on an issue of law and (2) denied qualified immunity.

That’s incorrect. As just mentioned, Johnson held that appellate courts generally lack jurisdiction to review the genuineness of a fact dispute as part of a qualified-immunity appeal. And the genuineness of a fact dispute is a legal question. (Iqbal acknowledged as much.) So it’s wrong to say that jurisdiction extends to all issues of law in a qualified-immunity appeal.

This might seem like a harmless overstatement that simply lacked some of the legal nuance. After all, jurisdiction was pretty solid under Scott’s blatant-contradiction exception.

But the scope of qualified-immunity appeals is a hotly contested issue. For example, Stephen Vladeck has criticized the Supreme Court’s decisions that expanded the scope of interlocutory qualified-immunity review to the plausibility of the pleadings and the existence of a Bivens remedy. Courts haven’t stopped with those issues and read Scott to extend jurisdiction to all legal issues. So, for example, the Sixth Circuit has held that it had jurisdiction in a qualified-immunity appeal to review whether findings in a state-court hearing had preclusive effect in a § 1983 case.¹ Another Sixth Circuit case read Scott as permitting an inquiry into not only whether a fact dispute is material, but also—and squarely in conflict with Johnson—whether a fact dispute is genuine.²

Regardless of whether it was intentional or sloppy, Underwood gives grist to those seeking to expand the scope of qualified-immunity appeals. And that scope should be narrower, not broader. The First Circuit should clarify Underwood the first chance it gets.

Links

• Underwood v. Barrett, ___ F.3d ____, 2019 WL 2150757 (1st Cir. 2019), available at the First Circuit (PDF, 16KB), Google Scholar, and Westlaw
• Stephen I. Vladeck, Pendent Appellate Bootstrapping, 16 Green Bag 2d 199 (2013)