The Supreme Court shoehorned qualified-immunity appeals into the collateral-order doctrine. The fit isn’t good, and the consequences have been worse.
June 7, 2020
In Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. Regardless of whether these denials should be appealable (a debatable point), the Court fudged the collateral-order doctrine to squeeze qualified-immunity appeals into it. The fit wasn’t—and never has been—pretty. And Mitchell spawned the unique appellate-procedure rules for qualified immunity, which have added difficulty, expense, and delay to civil-rights litigation. Those rules are in sore need of change.
The proceedings that led to Mitchell v. Forsyth
Mitchell v. Forsyth arose out of a warrantless wiretap of a college physics professor who was involved in an antiwar group. Then-Attorney General John Mitchell had authorized the warrantless wiretap on grounds that doing so was necessary for national security (the FBI believed that a group the professor belonged to planned attacks on the government). From 1970 to ’71, the wiretap intercepted conversations between the professor and Keith Forsyth. When Forsyth learned of the wiretap, he sued Mitchell. Forsyth claimed that the wiretap violated his rights under both the Fourth Amendment and federal law governing the use of wiretaps.
After some procedural developments irrelevant to the present discussion, Mitchell sought qualified immunity under the Supreme Court’s recent decision in Harlow v. Fitzgerald. Harlow had changed the standard for qualified immunity from a subjective inquiry into an objective one, shielding government officials from liability so long as they did not violate clearly established law. Mitchell argued that he had acted reasonably in authorizing the wiretap. But the district court disagreed. It held that a reasonable official in Mitchell’s position should have known that a warrantless wiretap violated the Fourth Amendment, even in cases of domestic threats to national security. After all, the Supreme Court’s decision holding as much was a logical extension of both general Fourth Amendment principles and the Court’s decision in Katz v. United States. On cross-motions for summary judgment, the district court held Mitchell liable for the wiretap and scheduled a hearing to determine damages.
Mitchell immediately appealed the denial of qualified immunity. (He also appealed the district court’s denial of absolute prosecutorial immunity, an issue that I ignore in this post.) A divided Third Circuit held that the denial of qualified immunity was not immediately appealable. The panel majority concluded that allowing appeals from denials of qualified immunity was not necessary to protect government officials from litigation and would too heavily burden the courts of appeals.
Since the appealability of denials of qualified immunity had split the courts of appeals, the Supreme Court granted cert to resolve the issue. (The Supreme Court also granted cert to address “whether the Attorney General is absolutely immune from suit for acts performed in the exercise of his national security functions” and whether Mitchell’s actions violated clearly established law; again, I ignore those issues in this post.)
The Supreme Court’s decision in Mitchell v. Forsyth
Michell produced three separate opinions that discussed appealability.
The majority opinion
The majority held that defendants can immediately appeal denials of qualified immunity via the collateral-order doctrine. That doctrine can be traced to 1949’s Cohen v. Beneficial Industrial Loan Corp. (from which it gets one of its other names: the “Cohen doctrine”). It permits immediate appeals from decisions that (1) conclusively decide an issue, (2) resolve an important issue that is completely separate from the merits of the action, and (3) are effectively unreviewable in an appeal after a final judgment.
Effectively unreviewable
The majority opinion began its appealability analysis with the collateral-order doctrine’s third requirement: a decision must be effectively unreviewable after a final judgment. In crafting the modern qualified-immunity defense in Harlow, the Supreme Court was concerned with not just the potential chilling effects of liability, but also the costs, inconveniences, and uncertainties of litigation. The Court thought that these costs, inconveniences, and uncertainties can distract government officials from their duties, chill government action, and deter potential applicants from pursuing public service. Harlow thus recognized a right to avoid the burdens and uncertainties of litigation when an official’s conduct was not clearly unconstitutional. And that right needed immediate appellate review:
The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.
Conclusively decided
The Court also concluded that the denial of qualified immunity was conclusive, as it definitively resolved whether whether an official could use avoid litigation. Once immunity was denied, litigation proceeded, and the official could do nothing to avoid it.
Important and completely separate
As for separateness, the court concluded that qualified immunity was “conceptually distinct” from the merits. The Court noted that an interlocutory appeal need not address the correctness of the plaintiff’s allegations or determine whether a plaintiff stated a claim (although that latter point seems to have been overruled by Ashcroft v. Iqbal). It needed instead to answer only a “purely legal” question: under the facts taken as true for the motion to dismiss or for summary judgment, did the official violate clear constitutional law?
The Court acknowledged that these appeals will require considering the plaintiff’s factual allegations. But it thought this was no different than double-jeopardy appeals or speech-and-debate-immunity appeals:
In holding these and similar issues of absolute immunity to be appealable under the collateral order doctrine, the Court has recognized that such a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.
A prohibition on any factual overlap would mean no appeals of these other defenses could be appealed. “There is no distinction in principle,” the Court concluded, “between the inquiry in such cases and the inquiry where the issue is qualified immunity.”
Justice O’Connor’s concurrence in Mitchell v. Forsyth
Concurring in part, Justice O’Connor focused on qualified immunity’s protection from the burdens of trial. The immunity’s purpose, she said, would “be irretrievably lost if its denial is not immediately appealable.”
Justice Brennan’s separate opinion in Mitchell v. Forsyth
Dissenting on the appealability issue, Justice Brennan contended that denials of qualified immunity were not immediately appealable collateral orders. He emphasized the policies underlying § 1291’s final-judgment rule. And he contended that denials of qualified immunity did not warrant special treatment for two reasons.
First, there was too much overlap between immunity and the merits. Courts deciding appeals from both would tread the same ground. And the problem was not merely one of factual overlap. There was legal overlap, too. Deciding other immediately appealable defenses often involved research and analysis that was unrelated to the merits. But the same wasn’t true for qualified immunity. So while qualified immunity might be “conceptually distinct,” that had not been the standard in prior cases. Justice Brennan also criticized the majority’s harping on the purely legal nature of the qualified-immunity inquiry. The nature of the question, he argued, had nothing to do with separateness. And the lack of separation increases the risk of multiple, overlapping, and even duplicative appeals, which the final-judgment rule exists to minimize. In the end, Justice Brennan thought, qualified-immunity should come with the full factual record of an appeal from a traditional final judgment.
Second, Justice Brennan disagreed with the majority on the denial of immunity was effectively unreviewable in an appeal from a final judgment. As Justice Brennan saw it, qualified immunity was not a right to avoid the burdens of trial. Harlow, according to Brennan, advanced the interest of avoiding the risks of trial by discarding the subjective portions of the qualified-immunity inquiry. That was enough to protect the interests that underly qualified immunity. Additional special appellate rules were unnecessary.
Analysis of Mitchell v. Forsyth
Mitchell’s analysis is rough. The decision can be understood only as a judgment call that the benefits of qualified-immunity appeals outweigh their costs. The Court shoehorned that judgment call into the collateral-order doctrine framework. And that shoehorning has led to both the expansion of qualified-immunity appeals and decades of struggling with those appeals.
Mitchell’s unstated rationale
Let’s start with the cost-benefit analysis that underlies Mitchell, in which the Court saw a shift in the normal cost of delaying appeals until after a final judgment.
Generally delaying appeals imposes costs on litigants who are wrongfully denied an early resolution on a particular issue. Even if these litigants ultimately prevail, they spend time and money litigating a case that an immediate appeal would have cut short. Litigants often cannot fully recover those costs; victory on appeal cannot give back the time (and only occasionally can give back the money) spent litigating. But these are the normal costs of litigation. And Congress and the courts have determined that those costs generally don’t merit immediate appeals.
Qualified immunity, according to Mitchell, is different. It’s supposed to protect officials not just from liability, but also from the normal costs, inconveniences, and uncertainties of litigation. That is, immunity protects government officials from the parts of litigation that everyone else normally has to put with before they can appeal. If qualified immunity is wrongfully denied and litigation proceeds, the protection is irretrievably lost. So if qualified immunity is to protect government officials, it must be vindicated immediately. An appeal after those costs have been borne does little good.
Putting aside for a moment the formal requirements of the collateral order doctrine, you can see the argument for immediate appeals of qualified immunity denials. If qualified immunity provides an immunity from the normal burdens of litigation, and if the erroneous denial of qualified immunity chills individuals from effectively carrying out governmental functions, then there are some good reasons for allowing immediate appeals. To be sure, these premises involve contestable (and contested) empirical questions and value judgments. If one assumes their truth, however, the conclusion on appealability has some force.
Mitchell v. Forsyth’s formal rational
But Mitchell could not simply base its appealability decision on the Court’s assessment of the costs and benefits of qualified-immunity appeals. When it comes to federal appellate jurisdiction, the Court rarely makes such explicitly ad hoc judgments. It instead has to fit those judgment calls into a doctrine. In Mitchell, the Court used the collateral-order doctrine.
The fit isn’t pretty. The first collateral-order requirement—the district court must have conclusively resolved the issue—is pretty easily satisfied. A denial of qualified immunity conclusively rejects the government official’s claim of a right to avoid further litigation, and at that point there is nothing the official could do to avoid the burdens of further litigation. And if you buy that qualified immunity is a necessary protection from suit, the denial of qualified immunity is probably effectively unreviewable after district court proceedings and thus satisfies the third collateral-order requirement.
But when it came to the second requirement—that a decision resolve an important issue separate from the merits of the action—Mitchell fudged the analysis. The Court concluded that the qualified immunity question was “conceptually distinct” from whether the defendant violated the plaintiff’s constitutional rights. The Court also discussed at some length the uniqueness of the qualified immunity inquiry:
An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions . . . .
In one footnote, the Court “emphasize[d] . . . that the appealable issue is a purely legal one: whether the facts alleged . . . support a claim of violation of clearly established law.” In another, the Court similarly characterized the qualified immunity inquiry as “a legal issue that can be decided with reference only to undisputed facts and in isolation from the remaining issues in the case.”
Is qualified immunity actually separate from the merits?
This conclusion—that qualified immunity is sufficiently separate from the merits—is a stretch. After all, qualified immunity is a defense on the merits. Evaluating qualified immunity requires assessing the same facts that underlie the merits. And immediate appeals of qualified immunity bring with them two costs that the collateral-order doctrine’s separate-from-the-merits requirement aims to avoid.
First is interference with ongoing district court proceedings. When litigants appeal an issue that is close to the merits of the claims, district court proceedings might need to be stayed until resolution of the appeal. This can cause substantial delays, as appeals can take years. The collateral-order requirement that a decision be separate from the merits minimizes this interference. If an order is separate from the merits, district court proceedings can continue without much concern about the appeal.
Second are duplicative appeals. If the same issue (or even similar issues) can be appealed multiple times in a single action, the court of appeals will need to address those same (or similar) issues in separate appeals. The result is duplicated work—appellate courts going over the same ground in separate appeals. But if an immediately appealed issue is separate from those that remain in the district court, it can be decided once in that appeal and need not be addressed again in any subsequent appeals. Appellate panels are thus not duplicating each other’s work.
Qualified-immunity appeals risk both interfering with district court proceedings and duplicative appeals. Because qualified immunity is a defense on the merits, district court proceedings can be stayed during the course of a qualified-immunity appeal. These appeals also present a real risk of duplicative appeals. In the immediate appeal from the denial of qualified immunity, the court of appeals will base its decision on facts taken as true from the complaint or the summary judgment record. If the court of appeals affirms the denial of qualified immunity, subsequent proceedings (such as a trial) might change those facts just enough to warrant a second look at the qualified-immunity question. Although the work in deciding each appeal is not exactly the same, it could be close.
Mitchell thus does not fit into the collateral-order doctrine. As Federal Practice and Procedure says, the decision instead “makes sense only as a determination that the need to protect officials against the burdens of further pretrial proceedings and trial justifies a clear departure from ordinary concepts of finality, including the ordinary requirements of collateral order doctrine.” That is, Mitchell can be explained only as a judgment call that the benefits of qualified-immunity appeals outweigh their costs.
Mitchell’s aftermath
So Mitchell is a borderline incoherent opinion. It has nevertheless spawned special appellate-procedure rules for qualified immunity. Defendants can now appeal the denial of qualified immunity twice (or maybe even three times) in a single action. When they appeal, they can ask courts to review a variety of issues, including the plausibility of the pleadings and the existence of a cause of action. Municipalities regularly attempt to piggyback on qualified-immunity appeals to raise issues of their own liability. And the one limit on the scope of these appeals—Johnson v. Jones’s rule that appellate courts cannot review whether the summary-judgment record supports the facts that the district court took as true in denying immunity—has done little to make things better. For one thing, the Supreme Court created an unnecessary and unpragmatic exception to Johnson when something in the summary-judgment record “blatantly contradicts” the district court’s version of the facts. For another, defendants regularly flout Johnson and dispute the facts on appeal.
I’ll soon discuss in more depth these expansions to the scope and availability of qualified-immunity appeals. For now, it’s enough to note that these special appellate-procedure rules make litigating civil-rights suits difficult, expensive, and time consuming.