Via Congressional action, Supreme Court decision, or rulemaking, the right to appeal from the denial of qualified immunity needs to change.
June 16, 2020
I’ve criticized the current regime of interlocutory qualified-immunity appeals quite a bit on this site. I recently wrote about how Mitchell v. Forsyth—which created qualified-immunity appeals—is a borderline coherent decision (if that). I’ve also recently touched on how the courts have steadily expanded the scope and availability of qualified-immunity appeals while undermining the supposed limits on those appeals. (See the linked posts for some background on the issues I discuss here.) And I’m working on a series of articles and essays arguing for reform of this area. The first one—Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is forthcoming in the Georgia Law Review, and a draft is available on SSRN.
But what might reform look like? In this post, I discuss three broad categories of possible changes: (1) narrowing the scope and availability of qualified-immunity appeals; (2) making these appeals discretionary, and (3) getting rid of them entirely.
Reversing the Expansion
In the 35 years since Mitchell v. Forsyth, courts have expanded the scope and availability of qualified-immunity appeals. Although qualified immunity itself normally involves asking only two questions—did the defendant violate federal law and was that violation clearly established?—courts have added a variety of other issues to the appeal. They includes the plausibility of the pleadings, the existence of a Bivens cause of action, and whether the summary-judgment record “blatantly contradicts” the facts that the district court took as true in denying immunity. Municipalities tag along to raise their own issues. And defendants can take two (or maybe even three) interlocutory appeals in a single action.
None of these expansions is worth the the difficulty, expense, and delay that it adds to qualified-immunity appeals. Some of them are downright useless. So one change worth considering is narrowing qualified-immunity appeals.
Narrowing the Issues
Qualified-immunity appeals should encompass no more than the two core qualified-immunity questions mentioned above: did the defendant violate federal law and was that violation clearly established? After all, qualified immunity purportedly exists to protect government officials from the burdens of litigation when they wouldn’t have reasonable notice that their alleged conduct was wrong. If their alleged conduct was clearly wrong, there is no purported social benefit in protecting them from litigation—or in creating exceptions to the normal rule that appeals must wait until the end of district court proceedings. So a qualified-immunity appeal should at most address whether the allegations or evidence (viewed in the light most favorable to the plaintiff) make out a clearly established violation of federal law.
But that’s it. Everything else—the plausibility of the pleadings, the existence of a cause of action, the content of the summary-judgment record—should be off of the table. None of those issues is necessary to answer the core qualified-immunity questions. Granted, it might occasionally seem practical to include these issues within the scope of review; the parties are already in the court of appeals, filing briefs, etc. But convenience doesn’t justify the costs that come with these issues. And including them within the scope of an appeal allows defendants to parlay weak immunity appeals into more comprehensive appellate review.
No More Municipal Tag Alongs
Narrowing the scope of qualified-immunity appeals to the core immunity questions also means no more municipal piggybacking. Municipalities regularly try to appeal alongside their employees’ qualified-immunity appeals, arguing that they cannot be liable so long as their employees did not violate the law. And courts sometimes allow them to.
There is absolutely no need for municipalities to do this. If the court of appeals decides that the individual defendant did not violate the law, the municipality can move to dismiss the claims against it in the district court. Allowing municipalities to tag along on qualified-immunity appeals merely makes these appeals more complicated, expensive, and time consuming.
Fewer Opportunities to Appeal
Defendants should have no more than one qualified-immunity appeal in a single action. That is, they should be able to appeal from the denial of immunity at the motion-to-dismiss stage or the summary-judgment stage. (There probably shouldn’t be any interlocutory appeals when district courts grant a new trial over a claim of qualified immunity.)
Justice Breyer made the case for a one-appeal rule in his Behrens v. Pelletier dissent. Multiple appeals in a single action create a risk of overlapping, duplicative appeals that require appellate courts to tread the same ground multiple times. So any benefit from a second appeal would likely be marginal. And the costs are inexcusable. A single qualified-immunity appeal already adds difficulty, expense, and delay to civil-rights litigation. Multiple appeals multiply those costs and risk grinding civil-rights litigation to a halt.
Shrinking Qualified-Immunity Appeals
Narrowing qualified-immunity appeals could be straightforward. First, require district courts to state the facts that they take as true in denying immunity—i.e., the most-plaintiff-favorable version of events based on the pleadings or the summary-judgment record. Second, limit the scope of qualified-immunity appeals to addressing only whether those facts constitute a clearly established violation of federal law. No more raising other issues in the appeal or municipalities tagging along to raise their own issues. And finally, limit defendants to one appeal in an action.
The Third Circuit already does something similar to the first two with its Forbes rule. In Forbes v. Township of Lower Merion, the Third Circuit created a supervisory rule for all cases in which a district court denied qualified immunity due to a genuine dispute of material facts:
So that we can carry out our review function without exceeding the limits of our jurisdiction under Johnson v. Jones, we will henceforth require the District Courts to specify those material facts that are and are not subject to genuine dispute and explain their materiality.
As Chief Judge Smith explained in a recent concurrence, “[a] comprehensive and detailed summary judgment opinion, specifying those facts that are undisputed as well as those that are material and subject to genuine dispute, is vital—and often essential—to [the court’s] meaningful review on appeal.” A variation on the Forbes rule that applied to all qualified-immunity denials could go a long way towards streamlining these appeals.
This is already sort of the rule when immunity is denied at summary judgment. The courts of appeals are supposed to ask only whether the facts that the district court took as true constitute a clearly established violation of law. They’re not supposed to look behind those facts to see if the summary-judgment record supports them. But this seeming limit on the scope of qualified-immunity appeals has been both undermined and ignored. It has been undermined by the blatant-contradiction exception to it that the courts of appeals have recognized after Scott v. Harris. And defendants regularly ignore it. A stronger rule is necessary.
Switching to Discretion
In addition to shrinking, qualified-immunity appeals could become discretionary. Like petitions to appeal class-certification decisions under Federal Rule of Civil Procedure 23(f), defendants would have a short window of time to ask the court of appeals for permission to appeal the denial of immunity. While that petition was pending, district court proceedings would normally not be stayed. A stay would come only after the court of appeals granted the petition to appeal. This would allow courts of appeals to still hear qualified-immunity appeals. But they would have unfettered discretion to decide which appeals to hear.
Discretion could have several benefits. Qualified-immunity appeals would hopefully be limited to cases that warrant the difficulty, expense, and delay that they create. Fights over appellate jurisdiction—as well as long, unnecessary delays when it turns out that the court of appeals lacks jurisdiction—would become a thing of the past. With no automatic stay, civil-rights litigation could keep moving. Discretion would also prevent defendants from using near-frivolous (or even frivolous) qualified-immunity appeals to harass and wear down plaintiffs.
Getting Rid of Them
Or we could just get rid of qualified-immunity appeals. The arguments against the immunity itself also justify doing away with the appeals. But even if the arguments against qualified immunity are not convincing, the appeals have their own unique issues that could warrant doing away with them.
For one thing, they’re theoretically and doctrinally unsound. Mitchell v. Forsyth got the collateral-order doctrine wrong. Qualified-immunity appeals are instead the sort of court-created appellate-jurisdiction rule that the Supreme Court now rejects.
For another, even if one supports qualified immunity, it’s not at all clear that immediate appeals are justified. As Justice Brennan pointed out in his Mitchell dissent, the substantive defense of qualified immunity (particularly the move to an objective standard in Harlow v. Fitzgerald) does enough to protect government officials from the burdens of litigation. Immediate appeals aren’t necessary.
And even if qualified-immunity appeals have some benefits, the costs they impose—complicated and expensive litigation that can take years to resolve—don’t justify them.
Who Can Change Things?
The Supreme Court could shrink qualified-immunity appeals or get rid of them. Congress could, too, and Congress could also make qualified-immunity appeals discretionary. But procedural changes also have a unique potential audience: the Rules Committee.
Congress authorized the Supreme Court to create rules governing appellate jurisdiction via the rulemaking process. Under 28 U.S.C. § 2072(c), the Court may prescribe rules defining when a district court decision is final for purposes § 1291. And under 28 U.S.C. § 1292(e), the Court can proscribe rules that provide “for an appeal of an interlocutory decision to the courts of appeals.”
These powers have gone largely gone unused; their only product is Rule 23(f). But the Rules Committee could probably use them to change the law governing qualified-immunity appeals. The Report of the Federal Courts Study Committee—which recommended the statutory provision that gave the Rules Committee the power to define when a district court decision is final—said that this power “would include authority to change (by broadening, narrowing, or systematizing) decisional results under the finality rule of 28 U.S.C. § 1291.” And in Johnson v. Fankell, the Supreme Court held that there is no federal right to interlocutory review from the denial of qualified immunity when an action is brought in state court. The Court noted that “[t]he right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in § 1983, but the right to immediate appellate review of that ruling in a federal case has its source in § 1291.” Fankell thus suggests that the Rules Committee’s power to define what orders are “final” under § 1291 includes the power to define the existence and scope of qualified-immunity appeals.