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.)
Unlike their employees, municipal defendants in civil-rights suits cannot invoke qualified immunity. Municipal defendants also don’t have a right to appeal if a district court refuses to dismiss a municipal claim. These defendants have nevertheless largely succeeded in tagging along when their employees appeal from the denial of qualified immunity. Invoking pendent appellate jurisdiction, most courts of appeals will allow these municipal appeals so long as—in the employees’ qualified-immunity appeal—the court concludes that no constitutional violation occurred.
This practice—which I call “municipal piggybacking”—is wholly unnecessary. Jurisdiction in municipal appeals turns entirely on the outcome of the employees’ appeals, so no one knows at the outset whether appellate jurisdiction exists. The parties nevertheless spend time researching, briefing, and arguing the municipal claim. If the court of appeals ultimately refuses to extend pendent appellate jurisdiction, all of that effort is wasted. Municipal piggybacking serves no legitimate purpose. It’s merely a tool for defendants to wear down civil-rights plaintiffs.
Municipal piggybacking needs to stop. But it’s not the only aspect of qualified-immunity appeals that needs reform. A unique set of appellate procedures accompany qualified immunity. Defendants have a right to appeal from the denial of immunity. And courts have steadily expanded the scope and availability of those appeals. These expansions serve little or no legitimate purpose. They instead make civil-rights litigation all the more complex, expensive, and time consuming. Qualified-immunity appeals need to change—whether that means limiting their scope and availability, making them discretionary, or doing away with them entirely. And the Rules Committee might be the best forum for those reforms.
Municipal Piggybacking in Qualified-Immunity Appeals, 126 Penn State Law Review (forthcoming 2021), available at SSRN.