Qualified-Immunity Appeals & the Merits
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under Kentucky law).
There is nothing all that remarkable in this outcome (though it’s always refreshing to see an appellate court decline to expand the scope or availability of qualified-immunity appeals). What’s interesting about New Albany is the court’s discussion of the connection between qualified immunity and an action’s merits.
In explaining its decision not to exercise pendent appellate jurisdiction over the amendment decision, the Sixth Circuit noted that it can address the merits of a constitutional claim as part of a qualified-immunity appeal. That’s because “qualified immunity’s legal test incorporates the constitutional merits”—a court must determine whether the constitution was violated at all before determining whether the law was clearly established. “So a court cannot grant ‘meaningful review’ to a qualified-immunity defense without delving into the merits.”
This last line says a lot more than the court probably intended. I have long argued that denials of qualified immunity are not separate from an actions merits and thus should not be immediately appealable under the collateral-order doctrine. The Sixth Circuit all but admitted the first point—that immunity denials are not separate. Courts should start acknowledging the second point—that this lack of separation precludes an appeal via the collateral-order doctrine.
Granted, the courts of appeals cannot overrule Mitchell v. Forsyth; only the Supreme Court can do so. But some candor about Mitchell’s incoherence would be refreshing.
New Albany Main Street Properties v. Watco Companies, LLC, 2025 WL 88943 (6th Cir. Jan. 14, 2025), available at the Sixth Circuit and Westlaw
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