Pendent Appellate Jurisdiction Without a Valid Appeal?
In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not appealable, there was nothing for the plaintiff’s appeal to piggyback on.
Simplifying only a bit, the case stemmed from a fatal police shooting. The decedent’s estate sued several defendants, alleging several theories of relief. What happened in the district court is not entirely clear. We know the district court denied two police officers’ request for qualified immunity and let the claims against them proceed. But the district court also said that the plaintiff had failed to plead any individual-capacity claims. So it appears that the district court thought the plaintiff brought official-capacity claims against those officers (even though qualified immunity does not apply to official-capacity claims). The two police officers then appealed, and the plaintiff cross-appealed.
The Second Circuit first said that it would exercise pendent appellate jurisdiction over the plaintiff’s cross appeal. Whether the defendants were sued in their individual or official capacity affects whether they can invoke the qualified-immunity defense. So according to the Second Circuit, the individual-capacity issue was “inextricably intertwined” with the qualified-immunity appeal. The court went on to hold that the district court erred in concluding that the plaintiff had not sued the officers in their individual capacity.
But the Second Circuit then dismissed the police officers’ appeal for a lack of jurisdiction. The officers had taken an improper, fact-based qualified-immunity appeal.
I don’t see how the Second Circuit exercised pendent appellate jurisdiction. The court did not have jurisdiction over the defendant’s appeal. So there was no appealable issue with which the pendent issues could tag along.
Rossy v. City of Buffalo, 2025 WL 816301 (2d Cir. Mar. 14, 2025), available at CourtListener and Westlaw
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