Estate of Ceballos & Pendent Appellate Jurisdiction Over Monell Claims

A recent decision out of the Tenth Circuit—Estate of Ceballos v. Husk—illustrates the one of the several persistent problems with interlocutory qualified-immunity appeals. In Ceballos, the Tenth Circuit rightly refused to extend pendent appellate jurisdiction over a city’s appeal from the denial of its motion to dismiss a civil right claims for municipal liability (more commonly known as a “Monell claim). But the court did not disclaim the practice of extending pendent jurisdiction over these appeals; it simply held that doing so was inappropriate in that case. Ceballos (like many other cases in which this issue arises) was a missed opportunity to squarely refuse to entertain these attempts at using pendent appellate jurisdiction. These attempts not only are doctrinally unsound, but they also impose costs on courts and litigants (in the form of wasted time and effort) with no offsetting benefits.

Ceballos arose from a fatal police shooting, and the plaintiffs sued both the individual officer (for excessive force) and the city (for failing to adequately train its officers). The district court denied both defendants’ motions for summary judgment, after which both tried to immediately appeal. Because the officer had sought qualified immunity, the Tenth Circuit had jurisdiction over his appeal under 28 U.S.C § 1291 and Mitchell v. Forsyth. But the court dismissed the city’s appeal for lack of jurisdiction. Denial of summary judgment on a Monell claim is not an immediately appealable order. And the court declined to exercise pendent appellate jurisdiction over the appeal, holding that the city’s appeal neither overlapped with nor was necessarily resolved by the the individual officer’s appeal.

Ceballos is another example of an issue I’ve been watching for a while: pendent appellate jurisdiction in qualified-immunity appeals. (I first discussed it in my article Finality, Appealability, and the Scope of Interlocutory Review and have done some initial work on an article solely about the topic.) Pendent appellate jurisdiction allows courts of appeals to review a decision that would not normally be final or appealable when the court has jurisdiction over another, related decision. The non-appealable decision piggybacks on the appealable one, giving the court interlocutory jurisdiction over issues or parties (or both) that it would not normally have.

The issue arises in civil rights suits against both individual government officials and their municipal employer. Individual defendants can raise the defense of qualified immunity—they are liable for damages only if they violated the plaintiff’s clear constitutional rights. And if the district court denies an individual defendant’s request for qualified immunity, that defendant can immediately appeal. Claims against municipalities (which are commonly called “Monell claims”) are treated differently. Municipalities cannot invoke qualified immunity; that defense is available only to individuals. But municipalities also are not liable for the actions of their employees via normal theories of respondeat superior. They are instead liable only if their employees’ actions were the result of the municipality’s policy or custom. And importantly, the denial of a motion to dismiss a Monell claim is not immediately appealable.

Municipalities nevertheless sometimes attempt to appeal Monell issues alongside an individual defendant’s appeal from the denial of qualified immunity. And they do so by invoking pendent appellate jurisdiction. Several courts of appeals have permitted this. See, e.g., Novoselsky v. Brown, 822 F.3d 342, 357 (7th Cir. 2016); Pollard v. City of Columbus, 780 F.3d 395, 404 (6th Cir. 2015); Evans v. Chalmers, 703 F.3d 636, 654 n.11 (4th Cir. 2012). In what is probably the most common scenario, courts of appeals have extended jurisdiction over a Monell claim after concluding that the individual defendants did not violate the plaintiff’s rights. With no constitutional violation by the individual officers, there is nothing for the municipality to be liable for. So the court extends jurisdiction to the municipality’s appeal, concludes that it cannot be liable, and remands for the entry of judgment against the plaintiff on the Monell claim.

This practice of defendants seeking and courts extending pendent appellate jurisdiction over municipalities’ appeals is both doctrinally and pragmatically unsound.

As a doctrinal matter, the practice is inconsistent with the Supreme Court’s decision in Swint v. Chambers County Commission. Swint (like Ceballos) involved civil rights claims against both individual officers and a municipality. The individual officers properly appealed from the denial of their motion seeking qualified immunity, and the municipality sought to piggyback an appeal from the denial of its own summary judgment motion. The Eleventh Circuit extended pendent appellate jurisdiction over the municipality’s appeal. But the Supreme Court held that doing so was improper. Although the Swint Court did not definitively establish the scope of pendent appellate jurisdiction, it noted that the municipality’s appeal was not “inextricably intertwined with [the district court’s] decision to deny the individual defendants’ qualified immunity motions,” nor was “review of the former decision was necessary to ensure meaningful review of the latter.” The Court accordingly concluded that “there is no ‘pendent party’ appellate jurisdiction of the kind the [court of appeals in Swint] purported to exercise.”

The negative implication of Swint’s reasoning is that pendent appellate jurisdiction might be proper if (1) a normally unappealable decision was inextricably intertwined with an appealable one or (2) review of the normally unappealable decisions was necessary to ensure meaningful review of the appealable one. Decisions extending pendent appellate jurisdiction to Monell claims satisfy neither of these requirements. Determining whether an officer is entitled to qualified immunity normally requires addressing only whether the official violated a constitutional right and whether that right was clearly established. Reviewing those matters does not require addressing whether a municipality has an unconstitutional policy or custom to decide—an official’s entitlement to qualified immunity has nothing to do with the municipality’s liability. For the same reasons, an individual’s entitlement to qualified immunity can be meaningfully reviewed without addressing the municipality’s liability.

Decisions extending pendent appellate jurisdiction in this context instead seem to be based on the seemingly practical concern of efficiency: if the outcome of the individual defendant’s appeal means that the municipality is also not liable, why not render a decision favorable to the municipality, too?

Swint rejected this as a proper ground for extending pendent appellate jurisdiction. But more importantly, the practice is actually impractical. While it might accelerate the resolution of some cases, it systematically creates extra work for the parties and the courts without creating any offsetting benefits.

The extra work comes from the parties’ briefing and arguing—and the court’s deciding—the municipality’s appeal. By leaving open the possibility of pendent appellate jurisdiction (especially when all that’s required for jurisdiction is concluding that the individual defendants did not violate the plaintiff’s constitutional rights) courts invite municipalities to appeal alongside their employees in the hope that the court of appeals will conclude that no constitutional violation occurred. But if the appellate court concludes that a violation did occur (or might have occurred, given the assumption that the district court’s assumed facts are true), then the court of appeals must dismiss the municipality’s appeal for lack of jurisdiction. This makes jurisdiction over the municipality’s appeal turn on the merits of the individual officers’ appeal. At the commencement of the appeal, neither the parties nor the court can determine whether jurisdiction exists over the municipality’s appeal. The parties nevertheless brief and argue both jurisdiction and the merits of the Monell claim. If the municipality’s appeal is dismissed for lack of jurisdiction, all of that effort on the merits is wasted.

There is also no need for this exercise. If the court of appeals concludes that no constitutional violation occurred, the municipality can then move for reconsideration of its motion in the district court. Given that the municipality cannot be liable unless a constitutional violation occurred—and given the court of appeals decision that no constitutional violation occurred—the motion should be straightforward and its disposition clear. Nothing of any value seems gained by shortcutting this process with an interlocutory appeal of uncertain jurisdiction.

Ceballos was right to reject pendent appellate jurisdiction over the city’s appeal. But the courts of appeals should more strongly reject these attempts to appeal. Extending pendent appellate jurisdiction like this is inconsistent with Swint and unpragmatic. And if the Rules Committee looks into reforming qualified-immunity appeals, expressly narrowing the scope of interlocutory review to squarely exclude these municipal appeals would be proper.

Links

• Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019): Slip Opinion, Google Scholar, Westlaw