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.
Federal Rule of Appellate Procedure 4(a)(2) should be amended to allow subsequent events to save any premature notice of appeal.
February 14, 2020
Updated with thoughts on some comments I’ve received.
In 2018, I published an article about cumulative finality. The cumulative-finality doctrine allows certain events to save certain premature notices of appeal. The rule can’t be stated much more specifically, however, because the law in this area is all over the map. My study of this area revealed three general approaches to cumulative finality and identified a number of inter- and intra-circuit splits. I also found confusion in the courts of appeals over how the general cumulative-finality doctrine interacts with Federal Rule of Appellate Procedure 4(a)(2), which was supposed to codify at least some of the doctrine.
I ended the article with a proposal to amend Rule 4(a)(2) to adopt the broadest approach to matters of cumulative finality. I have now put together a formal rule proposal based on my research. The suggested language is a bit different from that in my article, but the analysis is largely the same. For anyone curious, I’ve reproduced my proposal below.
Appellate courts have misread Rule 3(c) to deprive litigants of a full appeal. The proposed amendments cannot come soon enough.
February 12, 2020
Last summer, the Rules Committee proposed amending Federal Rule of Appellate Procedure 3(c). The rule requires that appellants designate the judgment or order they are appealing in their notice of appeal. Several courts of appeals have read this requirement to mean that appellate jurisdiction exists over only the specified judgment or order. This order-designation rule deprives litigants of a full appeal. And courts apply it with some frequency.
The proposed amendments abrogate the order-designation rule. As I wrote when the amendments were proposed and several times since, these amendments cannot come soon enough; they’re a necessary fix for a bad misreading of Rule 3(c). The inadvertent loss of appellate rights is rarely a good thing, and the doctrines that courts had made out of Rule 3(c) make little practical sense. But the new language might be a bit more complicated than necessary. The proposed amendments also raise the question of whether Rule 4(a)(4)(B)(ii) should also be amended.
I recently raised these points in comments submitted to the Advisory Committee on Appellate Rules. I’ve reproduced them below. The comment period closes on February 19, 2020, and instructions for submitting comments are available on the Rules Committee’s website.
The amended rule corrects misreadings of Rule 3(c), but it also makes the rule more complicated.
August 21, 2019
Updated August 22, 2019 with two additional thoughts.
The Rules Committee has published proposed amendments to Federal Rule of Appellate Procedure 3(c) for public comment. The amendments are good—they correct misreadings of Rule 3 that had senselessly deprived litigants of their appellate rights. But because the amendments correct a misreading of the rule as it’s currently written, they add complexity to Rule 3 that might prove confusing to those who were unaware of the problem.