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Qualified immunity makes it especially—and unjustifiably—difficult for plaintiffs to prevail in civil-rights suits. And the special appellate procedures that accompany qualified immunity ensure that litigating those suits will be complicated, expensive, and time consuming. Defendants have a right to appeal from the denial of immunity. That right—standing alone—is an immense procedural hurdle for plaintiffs. It gets worse; courts have steadily expanded the scope and availability of these appeals in ways that can grind civil-rights litigation to a halt.
Efforts are afoot to reform or abolish qualified immunity. And for good reason. But the prospects for change are uncertain. So long as qualified immunity remains in its present or an altered form, there is another tactic worth considering: going after the appeals. In a series of recent posts, I have explored the doctrinal and practical problems of qualified-immunity appeals. Here, I bring those posts and other sources together to suggest that reforming qualified-immunity appeals should at least be considered alongside efforts at reforming or abolishing the substantive defense. I don’t know what the best strategy for attacking qualified immunity is. But if qualified immunity sticks around, we need to fix the appeals.
Updated to correct the publication dates in the article cites.
The Akron Law Review just published its symposium on federal appeals. The symposium collects contributions from Cassandra Burke Robertson & Gregory Hilbert, Andrew Pollis, Michael Solimine, Adam Steinman, Joan Steinman, and me. The in-person portion of the symposium was unfortunately canceled due to COVID-19. But it was a lot of fun working with the Akron Law Review and the other contributors to the symposium.
Below are abstracts from, and links to, the wonderful papers (and mine, too). All are well worth the read and very highly recommended. The entire issue is available here.
Last week, in a split, unpublished opinion, Seventh Circuit held that motions to reconsider the denial of First Step Act relief extend the time for appealing. The D.C. Circuit held that would-be intervenors seeking to unseal judicial records can immediately appeal the denial of permissive intervention. The Tenth Circuit addressed its jurisdiction to review an order adding entities to a receivership. And in an interlocutory qualified-immunity appeal, the Fourth Circuit held that immunity was not available in qui tam suits. Plus two improper qualified-immunity appeals in which the defendants disputed the genuineness of fact disputes.
In United States v. Rutherford, a divided Seventh Circuit held that a motion to reconsider the denial of First Step Act relief extended the time for filing a notice of appeal. The majority concluded that these motions were common law motions to reconsider. And common law motions to reconsider in criminal cases extend the time for appealing; the motion makes the judgment non-final, and the judgment becomes final only after the district court resolves the motion. Dissenting, Judge Barrett contended that the motion for reconsideration was one under Federal Rule of Criminal Procedure 35. And Rule 35 motions to not extend the time for appealing.
Judge Barrett ended her dissent by pointing out that the court’s decision was non-precedential. So the Seventh Circuit might have to reckon with this issue again.
There were lots of interesting decisions last week. The Third Circuit held that attorneys can immediately appeal from denials of motions to withdraw due to a conflict of interest. The D.C. Circuit heard an appeal from an administrative remand in a suit involving the rates paid to pilots on the Great Lakes. The Fourth Circuit appeared to hold that litigants can immediately appeal denials of motions to seal, although the application of that holding to future cases is not entirely clear. The Ninth Circuit held that only one notice of appeal is required in deferred restitution cases. And the D.C. Circuit held that it could review whether a foreign sovereign could be ordered to simultaneously brief both its merits defenses and immunity. Plus two Eleventh Circuit decisions on qualified-immunity appeals and intervention appeals.
In American Great Lakes Ports Association v. Schultz, the D.C. Circuit held that an order remanding a dispute to an agency was final and appealable. Administrative remands are normally not final. But sometimes they are. American Great Lakes illustrates one exception to the general rule that applies when when, despite the remand, the dispute is effectively over in the district court and the agency. The dispute in American Great Lakes was over, and no further proceedings before the agency were ordered or likely. The D.C. Circuit accordingly held that it had appellate jurisdiction.
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.
Last week saw a few decisions of note. There were three qualified-immunity appeals that raised jurisdictional issues. In one, the Tenth Circuit declined to address arguments that the defendants had failed to develop in the district court. In another, the Eighth Circuit dismissed the appeal because the defendants disputed the facts. And the Sixth Circuit declined to exercise pendent appellate jurisdiction over a municipality’s appeal. Also, the Seventh Circuit addressed the appealability of a dismissal without prejudice when the statute of limitations had not yet run on the plaintiff’s claim.
Richard L. Heppner Jr.’s article Conceptualizing Appealability: Resisting The Supreme Court’s Categorical Imperative is now available. Heppner shows that appellate-jurisdiction rules have two components: the category of orders to which the rule applies, and the conditions under which orders in that category can be appealed. Using cognitive psychology, he explores how courts create and apply different kinds of categories. And he argues that courts should have flexibility in creating new categories of appealable orders.
Kylie G. Calabrese has published a note in the Baylor Law Review titled Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan. Calabrese chronicles—and criticizes—last year’s Fifth Circuit decision in In re JP Morgan Chase & Co., in which the panel denied mandamus yet purported to issue a binding holding on the underlying legal issues.…
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