Solimine on Interlocutory Qualified-Immunity Appeals
Michael Solimine’s essay Are Interlocutory Qualified Immunity Appeals Lawful? (PDF, 217KB) is now up at Notre Dame Law Review Online. Appeals from the denial of qualified immunity are a frequent topic on this blog (see here, here, and here), and anyone reading this should be interested in Michael’s essay. Here’s the abstract:
For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the defense, this questioning also suggests a revisiting of the status quo on defendants being able to immediately appeal a denial of the defense, a task undertaken by this Essay. After briefly setting out the status quo of the qualified immunity defense, this Essay argues that the decisions permitting immediate appealability are dubious on doctrinal, functional, and institutional grounds. It further argues that the decisions should either be overruled or significantly limited, and that the Court should leave it to the rulemaking process, rather than caselaw, to carve out any exceptions to the presumption that denial of such a defense is not immediately appealable.
I read an earlier draft of this essay, and it’s excellent—highly recommended.
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
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 […]
Continue reading....
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil […]
Continue reading....
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal […]
Continue reading....
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals. In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth […]
Continue reading....
In Chaney-Snell v. Young, the Sixth Circuit held that Heck v. Humphrey issues are outside the scope of qualified-immunity appeals. In doing so, the Sixth Circuit joined the majority of circuits in the (lopsided) split on this matter. The court went on, however, to extend pendent appellate jurisdiction to a judicial-estoppel argument. Extending jurisdiction was […]
Continue reading....Recent Posts
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel. Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after […]
Continue reading....
I’m thrilled to announce the creation of Final Decisions PLLC, an appellate boutique and consultancy focused on appellate jurisdiction. Through it, I hope to partner with lawyers facing complex appellate-jurisdiction issues. Almost six years ago, I started the Final Decisions blog as a way to keep on top of developments in the world of appellate […]
Continue reading....
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 […]
Continue reading....
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Continue reading....