In a forthcoming article, I argue that the courts of appeals should stop letting municipalities tag along with their employees’ qualified-immunity appeals.
March 19, 2021
Civil-rights plaintiffs sometimes sue both the government officials who injured them and the municipal entity (city, school, county, etc.) that employed the officials. (The claims against the municipalities are often called “Monell claims,” after the Supreme Court decision that governs them.) While individual government officials can invoke the qualified immunity defense, municipalities cannot. And while government officials can immediately appeal from the denial of immunity, municipalities have no right to immediately appeal from a district court’s decision refusing to dismiss a municipal claim.
But that hasn’t stopped municipalities. They’ve instead piggybacked on their employees’ qualified-immunity appeals via the doctrine of pendent appellate jurisdiction. This practice—which I call “municipal piggybacking”—is widespread, and nearly all courts of appeals allow it. It’s also a completely unnecessary practice that creates extra work for civil-rights plaintiffs. Municipal piggybacking is just one more way in which the special appellate rules for qualified immunity make civil-rights litigation more complex, expensive, and time consuming.
In a new paper—forthcoming in the Penn State Law Review—I tackle municipal piggybacking. I trace its development in the courts of appeals. I show that the practice is unpragmatic, unnecessary, and needs to stop. And I show how municipal piggybacking is only one part of a larger set of appellate-jurisdiction rules that frustrate the pursuit of civil-rights claims.
The paper is titled Municipal Piggybacking in Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
Fact-based qualified-immunity appeals are an immense problem in the courts of appeals. It’s time to start using sanctions to deter them.
March 10, 2021
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment cannot challenge the factual basis for the immunity denial. Yet defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
These appeals need to stop. In a new essay—forthcoming in the University of Illinois Law Review Online—I argue that courts need to start sanctioning defendants who take them. I show that the law governing these appeals is (to use a term from qualified immunity itself) clearly established and has been for decades. I illustrate the problem by cataloguing last year’s improper, fact-based qualified-immunity appeals, which unnecessarily delayed the underlying litigation by an average of 14 months. And I explain how sanctions might be the only way to stop these appeals.
The essay is titled Sanctioning Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
Adam Steinman argues for replacing the various standards of review with a unified one, with reversal proper only if (1) there’s an error of law or (2) the appellate court is more likely to be correct.
February 17, 2021
Standards of review are a key part of appellate litigation—you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. And a variety of standards of review exist, from de novo review for legal issues to clear-error review for factual issues to abuse-of-discretion review for a variety of district court decisions.
In a new article—Rethinking Standards of Appellate Review—Adam Steinman challenges the long-standing practice of assigning a standard of review to a particular issue. He would replace these various standards with a single one: the court of appeals can reverse only if it is more likely to reach the correct decision than the trial court. Steinman argues that this unified standard, coupled with the rule that errors of law always receive de novo review, would further both the error-correction and law-development purposes of appellate courts.
The abstract is below, and the article is available on SSRN. I read an earlier draft of this article and can highly recommend it—it’s very thought provoking.
The Akron Law Review symposium on federal appeals is out, exploring a variety of issues in appellate procedure and jurisdiction.
June 29, 2020
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.
Richard Heppner addresses the categorical component of appellate-jurisdiction rules—the orders to which a rule applies—and argues for flexibility in defining new categories.
June 12, 2020
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 chronicles a recent power grab by the Fifth Circuit—issuing binding precedent while denying mandamus—and the possible reasons behind it.
June 12, 2020
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. She explains how this differed from past instances of appellate courts’ denying mandamus while “nudging” district courts to take another look at an issue. (We saw an example of that last year when the D.C. Circuit denied mandamus but said the district court was wrong in refusing to certify an issue for immediate appeal under 28 U.S.C. § 1292(b).) She also shows how inappropriate this decision was in its disregard for the district court and the final-judgment rule. And she explores what might have motivated the author of the JP Morgan opinion—Judge Jerry Smith—to take such an unprecedented step.
The note is a great read—interesting, well written, and short. Check it out at the link below.
Kylie G. Calabrese, Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan, 72 Baylor Law Review 165 (2020), available at the Baylor Law Review.
I completed a study of Rule 23(f) petitions filed from 2013 through 2017, finding little support for common criticisms of the rule.
May 20, 2020
I’ve been studying interlocutory class-certification appeals for a while now, and my draft article on the topic—Interlocutory Class-Certification Appeals Under Rule 23(f)—is now up on SSRN. I created a dataset of petitions to appeal class-certification decisions under Federal Rule of Civil Procedure 23(f) filed from 2013 through 2017. The draft presents my findings, such as the number of petitions filed, the rate at which they’re granted (nationally and by circuit), and—when courts grant petitions to appeal—decisions on the merits of class certification.
I also analyzed whether the data support (or supports, depending on how you feel about whether data is singular or plural) two common criticisms of Rule 23(f). Rule 23(f) has few fans. Some critics contend that the rule operates largely to defendants’ benefit. Others contend that the courts apply the rule inconsistently. I found little support for either criticism in the data. And what little support there is comes with some serious caveats and needs further research.
A new Federal Judicial Center report provides some data on how the courts of appeals have decided petitions to appeal under 28 U.S.C. § 1292(b).
February 21, 2020
The Federal Judicial Center released a new report on petitions to appeal under 28 U.S.C. § 1292(b). The report—Emery G. Lee III, Jason A. Cantone & Kristin A. Garri, Permissive Interlocutory Appeals, 2013–2019—presents data on the incidence and resolution of § 1292(b) petitions terminated between October 1, 2013, and June 30, 2019. Parties filed 636 petitions to appeal in that period, and the courts of appeals granted or denied 535 (the rest were terminated procedurally). Of those 535, the courts of appeals granted 280 (52%). And when courts granted a § 1292(b) petition to appeal, the petitioning party obtained some relief (reversal in whole or in part or a vacatur) about half of the time.
The report’s executive summary is below. Thanks to Michael Solimine for sending this my way.
The rules for jurisdiction in qualified-immunity appeals needs to be clarified—and Scott v. Harris’s exception to those rules needs to go.
January 30, 2020
Updated July 2021: The article has been published in the Georgia Law Review (55 Ga. L. Rev. 959 (2021)), and the final version is available on SSRN.
Last year year I wrote that Scott v. Harris’s blatant-contradiction rule for qualified-immunity appeals is an unpragmatic and unnecessary rule that should be rejected. I also noted that I was working on an article that argued as much and used an original dataset of every blatant-contradiction decision in the 12 years since Scott to show why. The article—called Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now up on SSRN.
Paul Gugliuzza tackles arising-under patent jurisdiction, including the Federal Circuit’s exclusive appellate jurisdiction.
October 30, 2019
I’ve talked several times on this site about the recently denied cert petition in Xitronix Corp. v. KLA-Tencor Corp. The case involved a maddening back-and-forth between the Federal and Fifth Circuits, with each court saying that the other had appellate jurisdiction to review a Walker Process claim. More specifically, the two circuits disagreed about whether Walker Process claims arose under the patent law. If they did, the Federal Circuit had exclusive jurisdiction; if not, the appeal should have gone to the appropriate regional court.
Paul R. Gugliuzza has posted a new article on SSRN addressing the confusion over when claims arise under the patent law, appropriately titled Rising Confusion About ‘Arising Under’ Jurisdiction in Patent Cases. It’s forthcoming in the Emory Law Journal. Here’s the abstract: