The Fifth Circuit now appears to permit defendants invoking qualified immunity to immediately appeal orders regarding the scope of discovery.
June 7, 2024
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal decisions to defer ruling on qualified immunity until after discovery. But there was no deferral in Asante-Chioke. And the Fifth Circuit’s decision opens the door to future appeals challenging the scope of discovery in civil-rights actions.
The Immunity Denial & Discovery Order in Asante-Chioke
Asante-Chioke stemmed from a fatal police shooting. Simplifying only a little bit, the decedent’s daughter sued the police officer who shot her father. The plaintiff alleged that the officer continued firing after her father no longer posed a threat of harm to anyone.
Invoking the qualified-immunity defense, the officer moved to dismiss. He argued that the plaintiff’s complaint was deficient because she had failed to specifically allege how many shots were fired before and after her father ceased to be a threat.
The district court rejected this argument, noting that no authority requires that sort of accounting in a complaint. And were all of the plaintiff’s allegations true, the plaintiff had stated a valid claim that overcame the immunity defense.
The officer had alternatively asked the district court to limit the scope of discovery to qualified-immunity issues. The district court denied this request, too, concluding that an order limiting discovery was not necessary.
The officer then appealed. But he did not challenge the denial of qualified immunity. He instead argued only that the district court had erred in not limiting the scope of discovery.
Jurisdiction to Review the Scope of Discovery
The Fifth Circuit concluded that it had jurisdiction to review the denial of limited discovery.
The explanation was a little odd, as it focused on prior cases in which district courts deferred ruling on a motion to dismiss and instead ordered discovery. (There was no deferral in Asante-Chioke, but I’ll address that point in a moment.) The Fifth Circuit has long held that a refusal to rule on a qualified-immunity defense can amount to an effective denial of the immunity. After all, immunity is supposed to shield defendants from the burdens of discovery. A decision to defer a ruling on qualified immunity—and thus allowing discovery—risks erroneously losing immunity’s protection. So at least in the Fifth Circuit, decisions deferring a ruling on qualified immunity might be appealable.
Asante-Chioke read these deferral cases to mean that district courts must follow a “careful procedure” before allowing discovery. The district court must first determine that the complaint asserts facts that, if true, would defeat the qualified-immunity defense. That is, “a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.” Second, if ruling on immunity requires the resolution of factual disputes, the district court “may issue a discovery order narrowly tailored to uncover only those facts needed to rule on the immunity claim.”
Asante-Chioke said that appellate jurisdiction exists under the collateral-order doctrine to review orders that do not follow this “careful procedure.” The court also said that it can immediately review an order “that exceeds the requisite ‘narrowly tailored’ scope” of discovery.
As the Fifth Circuit saw things, the district court in Asante-Chioke failed follow the necessary procedures. And this “failure to limit discovery was tantamount to the denial of qualified immunity.” The Fifth Circuit accordingly vacated the district court’s decision and ordered the district court “to limit discovery to uncover only the facts necessary to rule on qualified immunity.”
A Number of Problems
Where to start with Asante-Chioke?
The Deferral Cases
Let’s talk first about the deferral cases.
Again, the Fifth Circuit has permitted appeals from district court decisions that deferred ruling on qualified immunity at the pleading stage and instead allowed some discovery. The rationale is that immunity protects defendants from litigation when their alleged conduct did not violate clearly established law. So permitting discovery before ruling on qualified immunity can deprive defendant’s of immunity’s protection.
But there was no deferral in Asante-Chioke. In rejecting the defendant’s motion to dismiss, the district court squarely denied qualified immunity. After all, if the facts were as the plaintiff alleged, the defendant continued shooting the decedent after he had been incapacitated. The defendant apparently conceded as much, as he did not challenge the denial of immunity on appeal.
The deferral cases are thus off point. Asante-Chioke is simply a civil-rights action that got past the pleading stage and into discovery.
Expanding Qualified-Immunity Appeals
That brings us to the second issue with Asante-Chioke. Because it is not a deferral case, Asante-Chioke must be understood as an expansion of the availability qualified-immunity appeals. The Fifth Circuit has now declared that it can immediately “review an order under the collateral order doctrine that exceeds the requisite ‘narrowly tailored’ scope.” Granted, similar language appears in the deferral cases. But Asante-Chioke applied that language outside of the deferral context. So if Asante-Chioke is right, defendants seeking qualified immunity who lose on a motion to dismiss can immediately appeal if they don’t like the subsequent scope of discovery.
That’s a new rule. And it’s a bad rule.
For one thing, it makes appellate jurisdiction turn on the merits. As the rule is phrased, appellate jurisdiction exists if the district court erred and permitted overbroad discovery. But if the district court’s discovery order was proper, there would be no appellate jurisdiction. This isn’t how jurisdictional rules should work. Courts should be able to determine their jurisdiction as early as possible, without diving into an action’s merits.
For another thing—and like every expansion of qualified-immunity appeals—the rule will add more complexity, delay, and expense to civil-rights actions. Civil-rights defendants in the Fifth Circuit can now immediately appeal to challenge the scope of discovery. I imagine many (if not most) district court decisions on the scope of discovery will be affirmed. But that won’t stop defendants from taking these appeals, as the delay they provide often benefits defendants.
An Inexcusable Exercise of Pendent Party Appellate Jurisdiction
Atop all of this is an issue I haven’t even mentioned yet: pendent appellate jurisdiction. The officer who shot the decedent was not the only defendant; the plaintiff also sued the superintendent of the Louisiana State Police in his official capacity. The district court refused to dismiss the state law claims against the superintendent.
Because he was sued in his official capacity, the superintendent could not invoke qualified immunity. He nevertheless appealed alongside the officer to challenge the district court’s refusal to limit discovery.
In a footnote, the Fifth Circuit said it had jurisdiction over that appeal, too. The only explanation: the plaintiff’s claims against the officer and superintendent were inextricably intertwined. That meant the court of appeals had pendent appellate jurisdiction over the superintendent’s appeal. So the decision applied to the superintendent, too.
But this is not simply an exercise of pendent appellate jurisdiction. It’s an exercise of pendent party appellate jurisdiction. After all, the superintendent could not appeal on his own. He had to tag along with the officer.
But the Fifth Circuit has refused to exercise pendent party appellate jurisdiction. So there should have been no jurisdiction over the superintendent’s appeal.
Asante-Chioke v. Dowdle, 2024 WL 2842206 (5th Cir. June 5, 2024), available at the Fifth Circuit and Westlaw