Posts tagged “Qualified-Immunity Appeals”
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.
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.
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 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.
Fact-based qualified-immunity appeals—that is, appeals from the denial of immunity in which a defendant challenges the factual basis for the immunity denial—are a problem in the courts of appeals. With rare and narrow exceptions, the courts of appeals lack jurisdiction over these appeals. Defendants nevertheless take these appeals with some frequency, adding wholly unnecessary complexity, expense, and delay to civil-rights litigation. The courts of appeals have not done enough to deter these appeals. And I argued in a recent essay that courts should start sanctioning defendants who take them. (You can read a draft of the essay at SSRN; comments are welcome.) Perhaps that would finally deter this abuse of qualified-immunity appeals.
Sanctions have been rare. But in last week’s Howlett v. City of Warren, the Sixth Circuit indicated that they might be appropriate. When the defendants in Howlett appealed from an order that (among other things) denied qualified immunity, a question arose as to the Sixth Circuit’s jurisdiction. In postponing a decision on a motion to dismiss the appeal, the court warned the defendants of the limits on its interlocutory jurisdiction. The defendants nevertheless appealed to challenge the factual basis for district court’s immunity denial. The Sixth Circuit accordingly dismissed the appeal. The court also ordered the defendants to show cause as to why the court should not sanction them.
Defendants shouldn’t need a reminder of this limit on the scope of qualified-immunity appeals. After all, the Supreme Court case establishing this limit is over 25 years old. Hopefully Howlett will dispel any lingering uncertainty and deter some future abuses of qualified-immunity appeals.
Civil-rights plaintiffs sometimes sue both the government officials who injured them and the municipal entity (city, school, county, etc.) that employed the officials. (The claims against the municipalities are often called “Monell claims,” after the Supreme Court decision that governs them.) While individual government officials can invoke the qualified immunity defense, municipalities cannot. And while government officials can immediately appeal from the denial of immunity, municipalities have no right to immediately appeal from a district court’s decision refusing to dismiss a municipal claim.
But that hasn’t stopped municipalities. They’ve instead piggybacked on their employees’ qualified-immunity appeals via the doctrine of pendent appellate jurisdiction. This practice—which I call “municipal piggybacking”—is widespread, and nearly all courts of appeals allow it. It’s also a completely unnecessary practice that creates extra work for civil-rights plaintiffs. Municipal piggybacking is just one more way in which the special appellate rules for qualified immunity make civil-rights litigation more complex, expensive, and time consuming.
In a new paper—forthcoming in the Penn State Law Review—I tackle municipal piggybacking. I trace its development in the courts of appeals. I show that the practice is unpragmatic, unnecessary, and needs to stop. And I show how municipal piggybacking is only one part of a larger set of appellate-jurisdiction rules that frustrate the pursuit of civil-rights claims.
The paper is titled Municipal Piggybacking in Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment cannot challenge the factual basis for the immunity denial. Yet defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
These appeals need to stop. In a new essay—forthcoming in the University of Illinois Law Review Online—I argue that courts need to start sanctioning defendants who take them. I show that the law governing these appeals is (to use a term from qualified immunity itself) clearly established and has been for decades. I illustrate the problem by cataloguing last year’s improper, fact-based qualified-immunity appeals, which unnecessarily delayed the underlying litigation by an average of 14 months. And I explain how sanctions might be the only way to stop these appeals.
The essay is titled Sanctioning Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
Jurisdiction over appeals from the denial of qualified immunity can be complex. In Mitchell v. Forsyth, the Supreme Court held that defendants can immediately appeal these denials via the collateral-order doctrine. Ten years later, in Johnson v. Jones, the Supreme Court limited that right to appeal when the district court denies immunity at the summary-judgment stage. The interplay of these two cases is not entirely intuitive. And some of the Supreme Court’s recent decisions—particularly Scott v. Harris—have raised questions about Johnson’s meaning and continued vitality. So confusion over Johnson occasionally crops up in the courts of appeals. And with confusion come efforts to make sense of the law in this area.
Judge William A. Fletcher of the Ninth Circuit has twice tried to reconcile the Supreme Court’s caselaw in this area: about a year ago, in a concurring opinion in Tuuamalemalo v. Greene; and again last week, in a dissenting opinion in Estate of Anderson v. Marsh. He reads Johnson to permit appeals only when the defendant does not dispute the the facts in the district court. And that rule, he explains, is an odd one—most denials of qualified immunity involve disputes over the facts, so Johnson would seem to bar most appeals from these denials. Judge Fletcher has accordingly called for the Supreme Court to revisit—and overrule—Johnson.
As I said last January when talking about Judge Fletcher’s opinion in Tuuamalemalo, I disagree with his reading of Johnson. He reads Johnson to make appellate jurisdiction turn on what the defendant argues in the district court. But Johnson makes appellate jurisdiction turn on what the defendant argues in the appeal. With rare exceptions, Johnson prohibits challenges to the factual basis of a district court’s immunity denial. So on appeal, the defendant cannot dispute the factual basis for the district court’s denial of qualified immunity. But defendants are free to do so in the district court without losing their opportunity to appeal.
Johnson’s prohibition on fact-based qualified-immunity appeals is a sound rule. It exists to streamline these appeals and focus appellate courts on the core qualified-immunity issues. So Johnson should not be overruled. If anything, its rule should should be reiterated and strengthened.
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. These defendants cannot argue that the district court erred in concluding that fact disputes were genuine—that is, they cannot dispute the district court’s determination of what a reasonable jury could find. But defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue only that the district court erred in determining what a reasonable jury could find. The appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District court often stay proceedings pending the appeal, which can take months or years. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
I regularly mention these improper appeals as part of my weekly roundup. But last week saw enough examples to warrant its own post. These examples illustrate one of the ways in which the special appellate procedures that accompany qualified immunity make civil-rights litigation so difficult. It’s already hard to win a civil-rights suit due to the substantive defense of qualified immunity. The special appellate rules that come with qualified immunity add unnecessary procedural hurdles to that suit. Should qualified immunity stick around in its current or an altered form, the appeals should become discretionary.
The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. The Supreme Court has held that this question is within the scope of a qualified-immunity appeal. That is, in an interlocutory appeal from the denial of qualified immunity, the court of appeals can address whether a Bivens remedy exists. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with an appeal from the denial of qualified immunity.
What if there are no grounds for a qualified-immunity appeal? The Third Circuit seemed to overlook this issue in last week’s Mack v. Yost. In what looked like a qualified-immunity appeal, the Third Circuit held that no Bivens remedy existed for First Amendment retaliation that occurred in a federal prison. But a few years ago, in a prior appeal in the same case, the Third Circuit held that the plaintiff had pleaded a violation of clearly established law and rejected the defendants’ request for immunity. Nothing seems to have changed since that prior decision that would have affected immunity. So it looks like there were no new grounds for seeking immunity. The Third Circuit nevertheless treated the case as a normal qualified-immunity appeal, concluded that no Bivens remedy existed, and reversed. Mack thus looks like a pure interlocutory Bivens appeal.
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