Scholarship

I research federal appellate jurisdiction—the law governing if, when, which, what, and how federal litigants can appeal. Below are abstracts of my articles and essays with links to read them.

Reforming Qualified-Immunity Appeals

87 Missouri Law Review 1137 (2022)

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those appeals. And the courts have given defendants nearly every opportunity to take qualified-immunity appeals, even if that means multiple appeals in a single action.

The judicially created and judicially managed right to appeal from the denial of qualified immunity has grown well beyond any justifiable bounds. Qualified-immunity appeals are thus one more reason to reform or abolish qualified immunity. But qualified-immunity reform is uncertain. If qualified immunity sticks around in anything resembling its current form, qualified-immunity appeals should be the next target.

In this article, I make the case for reforming qualified-immunity appeals. Using a wealth of original data on qualified-immunity appeals—including a dataset of every immediate appeal from the denial of qualified immunity from 2017 through 2020—I show how these appeals have expanded in both their scope and availability. I explain how these expansions have added complexity, expense, and delay to civil-rights litigation. I also show that these expansions serve no legitimate purpose; no reason justifies these deviations from the normal rule that appeals come at the end of district court proceedings. And I suggest that these expansions are the result of multiple procedural forces: the common-law approach to federal appellate jurisdiction, federal courts’ enthusiasm for qualified immunity, and restrictions on court access. I end with reforms. While a variety of intermediate reforms are possible, I conclude that the best way forward is to overrule Mitchell and its judicially created, judicially managed right to appeal. Congress or the Rules Committee can then decide what, if anything, should replace Mitchell. If either of those bodies acts, any replacement should be at most a limited appeal at the court of appeals’ discretion.

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Disarming the Finality Trap

97 New York University Law Review Online 173 (2022)

The federal courts of appeals have created—and acknowledged that they’ve created—a finality trap for would-be appellants. Litigants risk falling into the trap when they voluntarily dismiss some of their claims without prejudice and then try to appeal the district court’s resolution of other claims. Most courts of appeals see this as an attempted end run around the general rule that appeals must wait until all claims are resolved. After all, the without-prejudice dismissal means that the voluntarily dismissed claims might resurface at some future point. Most courts of appeals accordingly hold that the voluntary, without-prejudice dismissal does not result in a final, appealable decision. The trap springs when those courts then don’t provide a straightforward means for fixing the finality problem. Litigants are then left in litigation limbo. Their case is over and unchangeable in the district court. But the case is not final—and never will become final—for purposes of appeal.

The finality trap is asinine. And there’s an easy fix: Give would-be appellants the choice of either disclaiming the right to refile the voluntarily dismissed claims or returning to the district court to continue the action. This choice obviates any refiling concerns and ensures that the right to appeal is not lost due to a small procedural misstep.

Recent struggles with the finality trap also hint at an alternative approach to finality. When determining whether a district court has issued a final, appealable decision, courts normally look to the substance of the district court’s decision. That is, they ask whether the district court has actually resolved all of the claims. An alternative approach might ask only whether the district court is finished with an action. At that point—regardless of what the district court has done—the district court has entered a final decision. This shift in focus from what a district court has done to whether the district court is done might bring some much-needed clarity and simplicity to this area of the law.

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An Empirical Study of Class-Action Appeals

22 Journal of Appellate Practice & Process (forthcoming 2022)

Federal Rule of Civil Procedure 23(f) allows parties in a class action to petition the court of appeals for immediate review of class-certification decisions. Criticisms of the rule are common. Some see Rule 23(f) as a defendant-favoring tool for dragging out litigation and ensuring that no class is certified. Others contend that the rule is inconsistently applied among the circuits and should be replaced with a right to appeal. Yet there is little reliable data on how the courts have applied Rule 23(f).

To bring some hard data to this discussion, I collected all petitions to appeal from class-certification decisions under Federal Rule of Civil Procedure 23(f) that parties filed from 2013 through 2017. The data revealed three insights on Rule 23(f) and class actions generally. First are the basic findings—the number of petitions the rate at which different courts grant them, and what those courts do (affirm or reverse) after granting a petition. Second, empirical testing found little support for either of the above-mentioned criticisms. And third, the data shows one corner of the class-action universe in which plaintiffs are not predominantly losing: in the Rule 23(f) context, the courts of appeals reached a plaintiff-favorable outcome over 50% of the time.

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Municipal Piggybacking in Qualified-Immunity Appeals

126 Penn State Law Review 123 (2021)

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.

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Sanctioning Qualified-Immunity Appeals

2021 University of Illinois Law Review Online 130

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy.

There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues.

This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more.

Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

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Making Wilkie Worse: Qualified-Immunity Appeals & the Bivens Question after Ziglar and Hernandez

7/24/2020 University of Chicago Law Review Online 1

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Qualified immunity makes it very hard to win civil rights suits. But before you can win, you have to litigate. And qualified immunity’s special appellate procedures ensure that litigating will not be quick or easy.

One example is the inclusion of the Bivens question within the scope of interlocutory review. When plaintiffs sue a federal official, courts sometimes must ask the Bivens question: does a cause of action exist for suing this official for this alleged constitutional violation? In Wilkie v. Robbins, the Supreme Court held that this issue was within the scope of review in a qualified-immunity appeal. That was wrong; this inclusion of the Bivens question serves no legitimate purpose and needlessly adds to the complexity of civil rights litigation. The Supreme Court’s recent decisions in Ziglar v. Abassi and Hernandez v. Mesa make Wilkie even worse. Ziglar and Hernandez emphasized the need to ask the Bivens question anytime a case arose in a “new context.” And the Court defined “new context” so broadly and vaguely that nearly all (if not all) federal officials will have a non-frivolous argument that the claims against them arise in a new context, thereby requiring addressing the Bivens question in both the district court and in an interlocutory appeal from the denial of qualified immunity.

Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. And unlike efforts to reform the substantive immunity defense, efforts to change qualified-immunity appeals can be addressed to the Rules Committee. The prospects of doing away with qualified immunity are uncertain. So the time to start thinking about reforming qualified-immunity appeals is now.

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Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals

55 Georgia Law Review (forthcoming 2020)

When a district court denies qualified immunity at summary judgment, defendants have a limited right to immediately appeal that decision. In Johnson v. Jones, the Supreme Court held that the courts of appeals have jurisdiction to address only whether the facts assumed by the district court amount to a clearly established violation of federal law. They lack jurisdiction to look behind the facts that the district assumed were true to see whether the evidence supports those facts. Despite this seemingly clear rule, defendants regularly flaunt Johnson’s jurisdictional limits, taking improper appeals, creating extra work for appellate courts, and imposing wholly unnecessary costs and delays on civil rights plaintiffs. Plaintiffs and even courts also are sometimes confused by the rule in Johnson. And the Supreme Court’s decision in Scott v. Harris—which appeared to violate Johnson’s limits without mentioning Johnson or even appellate jurisdiction—has made the jurisdictional rules governing qualified-immunity appeals even less certain.

In this article, I address the law governing jurisdiction in qualified-immunity appeals from summary judgment. I show that Johnson can be read only to mean that the courts of appeals generally lack jurisdiction to review whether the summary-judgment record supports the district court’s assumed facts. I explain how to reconcile the analysis in Scott with the rule in Johnson: Scott created an exception to the general limit on reviewing the district court’s assumed facts when something in the record blatantly contradicts those facts. I argue—based on my analysis of 12 years of decisions invoking this exception—that Scott’s blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would both clarify and improve the law governing qualified-immunity appeals.

Download at SSRN.

Three Ideas for Discretionary Appeals

35 Akron Law Review 639 (2019)

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a civil action to directly petition the court of appeals for an immediate appeal. And third, experiment with these and other possible reforms in a few circuits to see how they work. These ideas are admittedly preliminary. But we should start thinking about what discretionary appeals might look like in the future and how we might move towards that future.

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Appellate Jurisdiction in Sanchez-Gomez: A Hard Case that Should Be Easy

96 Washington University Law Review Online 1 (2018)

In United States v. Sanchez-Gomez, the Supreme Court will decide whether the Ninth Circuit had jurisdiction to strike down a district court rule requiring that all criminal defendants be shackled in full restraints for most non-jury proceedings. As the Court and the parties have approached Sanchez-Gomez, it’s a hard case. It presents difficult and unresolved issues about the meaning and application of two major aspects of federal appellate jurisdiction: the collateral-order doctrine and appellate mandamus. But Sanchez-Gomez should be easy. It’s what I call a “one-shot” interlocutory appeal—it presents a relatively abstract issue of law that, once resolved, will resolve the issue for all litigants and will not require any future appeals on case-specific applications of the law. The lower risk of increasing appellate caseloads, coupled with the chance that the shackling rule might otherwise evade appellate review, merits an immediate appeal. The Supreme Court might make its task easier by recognizing the one-shot nature of Sanchez-Gomez. In the future, a rule of procedure allowing discretionary appeals from any district court decision might avoid turning easy cases like Sanchez-Gomez into hard ones.

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Finality, Appealability, and the Scope of Interlocutory Review

93 Washington Law Review 1809 (2018)

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be “final.” Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”

This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those before-the-end-of-proceedings appeals. Though related, these contexts are distinct, involve unique interests, and raise unique issues. Successful reform must fill all of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.

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Hall v. Hall: A Lose-Lose Case for Appellate Jurisdiction

68 Emory Law Journal Online 1001 (2018)

In Hall v. Hall, the Supreme Court decided when parties in consolidated actions can appeal. But the Court had no great options in deciding the case. The Court ultimately adopted a straightforward rule—consistent with prior understandings of consolidation and what it means for a decision to be “final”—but it’s one that might produce pragmatically unsound results. The Court’s other option was a more flexible—and practical—approach, but doing so would have injected further uncertainty and complexity into this area of the law. This problem is not unique to Hall. It exists when courts decide many issues of federal appellate jurisdiction. But Hall also illustrates the alternative way forward: although it’s too late for Hall itself, the issue in Hall is an ideal one for rulemaking. More generally, rulemaking can avoid many of the problems federal courts run into when making rules of appellate jurisdiction.

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Cumulative Finality

52 Georgia Law Review 767 (2018)

A proper notice of appeal is a necessary first step in most federal appeals. But federal litigants sometimes file their notice of appeal early, before district court proceedings have ended. When those proceedings finally end and no new notice is filed, the law of cumulative finality determines what effect—if any—the premature notice has. Sometimes the notice is effective and the appeal proceeds as normal. Sometimes it’s not, and litigants lose their right to appeal.

At least, that’s how the law of cumulative finality looks from a distance. Up close, the courts of appeals are hopelessly divided on matters of cumulative finality. They disagree on what law governs cumulative finality issues—whether they are governed solely by Rule of Appellate Procedure 4(a)(2) or also by a common-law cumulative finality doctrine that preceded the rule—and under what conditions a premature notice of appeal is saved. Three distinct approaches to cumulative finality have emerged, resulting in a deep circuit split. To make matters worse, decisions within several of the circuits have applied different approaches, resulting in intra-circuit divides.

This article offers a fix. Neither the text of the Rules of Appellate Procedure nor their history provide a clear cumulative finality rule. But looking to the practicalities of the issue suggests allowing a subsequent judgment to save any prematurely filed notice of appeal. Doing so imposes few (if any) costs while preserving litigants’ right to appeal.

The current cumulative finality mess illuminates a larger issue with the appellate jurisdiction literature and its attendant reform efforts. The literature has long maligned the unnecessary complexity and uncertainty of the entire federal appellate jurisdiction regime and advocated reform. But most of that literature focuses on only one part of that regime—appeals before the end of district court proceedings. Equally important are issues with determining when district court proceedings have ended and parties thus have a right to appeal. Cumulative finality is only one piece in this other aspect of appellate jurisdiction. There are more. Successful reform might require establishing a new, clearer point at which parties have a right to appeal. So this other aspect of appellate jurisdiction needs similar attention if reform is to succeed.

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Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

51 University of Richmond Law Review 371 (2017)

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the courts of appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the courts of appeals.

The balancing approach’s persistence—seemingly in direct defiance of the Supreme Court’s mandate—suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true—if appellate judges cannot completely forgo using discretion in defining their jurisdiction—that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

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Perlman Appeals After Mohawk

52 University of Cincinnati Law Review 1 (2017)

When a federal district court orders the disclosure of allegedly privileged information, privilege claimants have had—until recently—at least one option for seeking immediate appellate review. Claimants who control disclosure can disobey the order, be found in contempt, and immediately appeal the contempt finding. Claimants who don’t control disclosure can take what’s called a Perlman appeal. But that latter option is disappearing for some litigants. Several courts of appeals recently have held that only non-parties can take Perlman appeals. For parties, an appeal after final judgment must suffice.

This development in the Perlman doctrine is mistaken. Contempt appeals and Perlman appeals both exist to protect against a specific harm of erroneous discovery orders—the disclosure of confidential information. Once confidential information is disclosed, its secrecy is lost and can never be recovered. Contempt appeals and Perlman appeals provide privilege claimants a chance at appellate review before the secrecy of privileged information is forever lost. And given this purpose, party or non-party status is irrelevant; an appeal after a final judgment is useless for both.

Analysis of this development in the Perlman doctrine reveals a larger point about interlocutory appeals. We are closer now than we have been in some time to codifying the judge-made exceptions to the final-judgment rule. But literature examining this area of law is incomplete. Too many discrete issues have been overlooked. And if codification is to succeed, much work needs to be done. I end this article by laying the groundwork for that future research—a taxonomy of exceptions to the final-judgment rule. Not only will this taxonomy provide some necessary structure for the study of appellate jurisdiction, but it will also help identify the many areas of appellate jurisdiction worth exploring and the connections between these areas.

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Rules, Standards, and Experimentation in Appellate Jurisdiction

74 Ohio State Law Journal 423 (2013)

The current system of interlocutory appeals in federal court has long been criticized for its complexity and unpredictability, and federal courts scholars have long debated how best to reform it. But much of this discussion occurs at an abstract level. Scholars debate the effects of potential reforms—such as whether a particular reform will increase the number of interlocutory appeals—and these arguments have a substantial empirical element. They are often based, however, on implicit theories of judicial and litigant behavior, not empirical evidence. All of these arguments contain plausible positions on the potential effects of particular reforms. And therein lies the problem; there is no way to evaluate such arguments other than to agree or disagree with the logic and normative commitments at their core. Some empirical evidence could go a long way toward breaking the current stalemate in interlocutory appeal reform.

This article offers a means of using experimentation, initiated and overseen by judges, to generate evidence about the consequences of different approaches to interlocutory appeals. Under this experimental approach, the courts of appeals would be permitted to take differing positions on the appealability of particular orders; repeated application of these different rules would then illustrate their effects. The courts could reassess these different rules in light of their observed consequences. Although such experimentation (sometimes called “percolation”) is controversial, it could work in the interlocutory appeals context. As a specific means for facilitating such experimentation, this article looks to the choice between rules and standards and suggests the modest and feasible reform of making the current collateral order exception more standard-like. In so doing, this article shows how standards can facilitate rapid and fruitful experimentation in a hierarchical judiciary, something the literature on rules and standards has often overlooked.

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Last updated February 9, 2023.