A divided Tenth Circuit held that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.
May 9, 2024
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 Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.
The Sixth Circuit joined the “no jurisdiction” side of the split on whether courts can review Heck issues as part of a qualified-immunity appeal. But it probably went too far in reviewing a judicial-estoppel argument.
April 17, 2024
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 necessary, the court explained, to effectively review the denial of qualified immunity.
While I agree with the Heck holding, I don’t agree with the review of the judicial-estoppel issue. The court’s rationale on the latter point would seem to allow plenary review of the factual basis for a district court’s immunity denial. And Johnson v. Jones normally prohibits that sort of review.
(For more on the scope of qualified-immunity appeals, see my article, Reforming Qualified-Immunity Appeals.)
The Eleventh Circuit says that it can review the genuineness of fact disputes in qualified-immunity appeals so long as the defendant also challenges the existence of a clearly established constitutional violation.
February 11, 2024
As I’ve said many times on this site and in my scholarship, the genuineness of any factual disputes is normally not within the scope of interlocutory qualified-immunity appeals. There are some widely recognized exceptions to this rule. Two Eleventh Circuit cases from last month—Nelson v. Tompkins and Dempsey v. Sheriff—illustrated a less-well-recognized exception. The Eleventh Circuit said that it can review the genuineness of factual disputes so long as the defendant also challenges the existence of a clearly established constitutional violation. This seems to me to be a pretty mistaken end-run around the normal limits on qualified-immunity appeals.
The Fifth Circuit said that it could review the genuineness of fact disputes in qualified-immunity appeals when there’s a video of the events.
November 21, 2023
In Argueta v. Jaradi, the Fifth Circuit created a new exception to the bar on reviewing the genuineness of fact disputes in qualified-immunity appeals. In most of those appeals, the court must take as given the district court’s determination of what facts a reasonable jury could find. But according to the Fifth Circuit, an appellate court doesn’t have to do that when video evidence exists.
The Eighth Circuit said it could review the misstatement and misapplication of the summary-judgment standard in a qualified-immunity appeal. But that might circumvent Johnson v. Jones.
October 21, 2023
In Washington v. City of St. Louis, the Eighth Circuit vacated a denial of qualified immunity because the district court misstated and misapplied the summary-judgment standard. The Eighth Circuit thought this was a legal issue over which it had jurisdiction in a qualified-immunity appeal.
But I’m not sure. Most (if not all) reversible summary-judgment decisions can be characterized as misunderstandings or misapplications of the summary-judgment standard. And Johnson v. Jones said that some of these reversible summary-judgment decisions—those involving evidence sufficiency—are off limits in immediate appeals from the denial of qualified immunity. Washington might have just restated the evidence-sufficiency inquiry in a way that gets around Johnson.
The Third Circuit split on whether federal officials can appeal Bivens issues without appealing from the denial of qualified immunity.
February 16, 2023
In Graber v. Doe II, a panel of the Third Circuit split on whether federal officials could immediately appeal the Bivens question without a qualified-immunity appeal. It’s the second decision in recent memory to reject a pure Bivens appeal. And this time, at least one judge was willing to hold that the Bivens issue was immediately appealable via the collateral-order doctrine.
The Ninth Circuit definitively held that the Bivens question is within the scope of qualified-immunity appeals, rejecting pre-Wilkie cases that said otherwise.
February 13, 2023
In Pettibone v. Russell, the Ninth Circuit categorically held that it could address the Bivens question as part of a qualified-immunity appeal. In the course of doing so, the court rejected its older cases holding to the contrary.
In a new article, I make the case for reforming qualified-immunity appeals—reform that includes overruling Mitchell v. Forsyth and its judicially created and judicially managed right to appeal.
April 8, 2022
Although there is a concerted effort to reform or abolish qualified immunity, the prospects of doing so are uncertain. In a new article, I argue that if if qualified immunity remains in its current or a similar form, reformers should target qualified-immunity appeals. Although courts and commentators have occasionally criticized qualified-immunity appeals, they often fail to see how much damage these appeals have done. This article reveals the full costs of qualified-immunity appeals, which are an immense source of complexity, expense, and delay in civil-rights litigation.
I’ve written a lot about qualified-immunity appeals over the last few years. This article marks the culmination of that work. It provides new empirical data on the incidence, procedural posture, and outcome of qualified-immunity appeals. It exhaustively details the ways in which federal courts have expanded the scope and availability of these appeals. It explains that these expansions add complexity, expense, and delay to civil-rights litigation with little or no offsetting benefit. And it argues that the only way forward is to overrule the Supreme Court’s decision in Mitchell v. Forsyth, which created the right to immediately appeal from the denial of qualified immunity.
The article is forthcoming in the Missouri Law Review. A draft is available on SSRN, and the abstract is below.
Can the courts of appeals separate the “factual” and “legal” arguments in a qualified immunity appeal, ignoring the former and addressing the latter? Should they?
December 7, 2021
When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But the scope of that appeal is limited. With rare and narrow exceptions, the court of appeals lacks jurisdiction to review the genuineness of any fact disputes—i.e., the facts that (according to the district court) a reasonable jury could find. The court of appeals must instead take the factual basis for the immunity denial as given and address only whether those facts amount to a violation of clearly established law. So courts of appeals must dismiss appeals that challenge the factual basis of an immunity denial and review only those that raise more abstract questions about the existence and clarity of a constitutional violation.
But what should an appellate court do if a defendant both challenges the factual basis for an immunity denial and raises those more abstract questions? The Sixth Circuit recently wrestled with this question in Gillespie v. Miami Township. The defendant in Gillespie repeatedly challenged the factual basis for an immunity denial. The Sixth Circuit dismissed the appeal in its entirety, concluding that these factual challenges were crucial to all of the defendant’s arguments. Judge Bush dissented in part to argue that the court should have separated the defendant’s impermissible factual challenges from his other arguments and addressed the latter.
The disagreement in Gillespie—the extent to which a court of appeals should dismiss factual challenges but then address any residual legal issues—seems to be one about how much leeway to give defendants in qualified-immunity appeals. If a defendant challenges the factual basis for an immunity denial, should the court of appeals pick through the defendant’s brief in search of arguments over which the court might have jurisdiction? Given the frequency of defendants’ challenging the factual basis for immunity denials—and the clarity of the law holding that those challenges are improper—I lean towards dismissing appeals when defendants never accept (for the purposes of appeal) the district court’s version of events. As Gillespie pointed out (and as I have, too), the limits on the scope of qualified-immunity appeals have been the law for over 25 years. Defendants who flout those limits add wholly unnecessary complexity, expense, and delay to civil-rights litigation. If these defendants cannot be bothered to keep their appeals within clear jurisdictional bounds, they should not get the benefit of immediate appellate review.
The Sixth Circuit dismissed an appeal that raised only the Bivens question, as the defendant had not sought qualified immunity.
July 24, 2021
The Bivens question asks whether a damages action exists for a federal official’s unconstitutional conduct. In Wilkie v. Robbins, the Supreme Court held that courts of appeals can address the Bivens question as part of an appeal from the denial of qualified immunity. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with a qualified-immunity appeal.
In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit accordingly dismissed a pure Bivens appeal. The defendant in Himmelreich had not sought qualified immunity in the district court. She argued only that no Bivens remedy existed for her alleged conduct and appealed only the district court’s rejection of that argument. With no denial of qualified immunity, the Sixth Circuit lacked jurisdiction over the appeal.