Posts tagged “Qualified-Immunity Appeals”
In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court. So in their interlocutory qualified-immunity appeal, the Fourth Circuit concluded that the issue had been forfeited. In the course of doing so, the Fourth Circuit rejected the argument that the Bivens issue (like jurisdictional issues) could not be waived or forfeited. The court also dismissed the defendants’ fact-based challenges to the denial of qualified immunity.
I’ve criticized the current regime of interlocutory qualified-immunity appeals quite a bit on this site. I recently wrote about how Mitchell v. Forsyth—which created qualified-immunity appeals—is a borderline coherent decision (if that). I’ve also recently touched on how the courts have steadily expanded the scope and availability of qualified-immunity appeals while undermining the supposed limits on those appeals. (See the linked posts for some background on the issues I discuss here.) And I’m working on a series of articles and essays arguing for reform of this area. The first one—Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is forthcoming in the Georgia Law Review, and a draft is available on SSRN.
But what might reform look like? In this post, I discuss three broad categories of possible changes: (1) narrowing the scope and availability of qualified-immunity appeals; (2) making these appeals discretionary, and (3) getting rid of them entirely.
In 1985’s Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. This right to appeal impedes the swift resolution of many civil-rights actions, and it has been rightly criticized. But the right to appeal isn’t the only problem. In the years since Mitchell, courts have steadily expanded the scope and availability of qualified-immunity appeals. And these special appellate-procedure rules for qualified immunity have added unnecessary and unjustified difficulty, expense, and delay to civil-rights litigation.
This post summarizes some of ways in which courts have expanded qualified-immunity appeals.
In Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. Regardless of whether these denials should be appealable (a debatable point), the Court fudged the collateral-order doctrine to squeeze qualified-immunity appeals into it. The fit wasn’t—and never has been—pretty. And Mitchell spawned the unique appellate-procedure rules for qualified immunity, which have added difficulty, expense, and delay to civil-rights litigation. Those rules are in sore need of change.
In Monday’s Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. Although defendants have a right to immediately appeal the denial of qualified immunity, that right is limited when immunity is denied at summary judgment. The court of appeals can review whether the defendant violated clearly established federal law. But in doing so, the court of appeals must take as true the same facts that the district court determined a reasonable jury could find. The appellate court lacks jurisdiction to look behind the facts that the district court assumed were true to see if the summary-judgment record supported them. Granted, a few exceptions to these general jurisdictional limits exist. But these general rules were laid down 25 years ago in Johnson v. Jones and have remained the law ever since.
Defendants nevertheless flout these jurisdictional rules with some regularity. When they do, they needlessly delay district court proceedings, create unnecessary work for the courts and parties, and waste everyone’s time. Orn is another unfortunate example. The practice needs to stop. In this post, I use Orn to illustrate this problematic practice. And (if you’ll excuse the self promotion) for a more in-depth discussion of this issue—including how courts or rulemakers can clarify and improve this area of the law—you can read the new draft of my article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals, which I recently posted to SSRN.
Updated July 2021: The article has been published in the Georgia Law Review (55 Ga. L. Rev. 959 (2021)), and the final version is available on SSRN.
Last year year I wrote that Scott v. Harris’s blatant-contradiction rule for qualified-immunity appeals is an unpragmatic and unnecessary rule that should be rejected. I also noted that I was working on an article that argued as much and used an original dataset of every blatant-contradiction decision in the 12 years since Scott to show why. The article—called Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now up on SSRN.
In Koh v. Ustich, the Seventh Circuit dismissed a qualified-immunity appeal because all of the defendants’ arguments disputed the version of facts assumed by the district court. It was an undoubtedly correct decision. But the appeal appears to be another unfortunate example of imposing unnecessary delay and expense on plaintiffs’ civil rights claims for no good reason. This can happen because the law governing qualified-immunity appeals is not conducive to early screening of improper appeals.
In King v. LeBlanc, the Fifth Circuit dismissed a qualified-immunity appeal that challenged only the district court’s determination that a genuine fact issue existed as to the officer’s deliberate indifference. This far-too-common practice of challenging the facts in qualified-immunity appeals wastes a lot of time for courts and plaintiffs. In King, the Fifth Circuit was quick to remind defendants that it lacks jurisdiction over these arguments. But are reminders enough?
One issue that makes jurisdiction over interlocutory qualified-immunity appeals so maddening is the uncertain scope of review. The Supreme Court’s decision in Johnson v. Jones says that courts of appeals are not supposed to review the district court’s conclusion that genuine fact issues exist. Appellate courts should instead take the district court’s assumed facts as given and ask whether those facts make out a clear constitutional violation. But this isn’t always easy, especially if the district court doesn’t explain the facts it assumed in denying qualified immunity.
The Third Circuit has addressed these difficulties with a supervisory rule requiring district courts to explain their denials of qualified immunity at summary judgment. And a recent concurrence from that court’s Chief Judge, D. Brooks Smith, emphasized the importance of this supervisory rule. As I argued in a recent article, other courts—and perhaps even the Rules Committee—should consider the Third Circuit’s practice.
The courts of appeals often wrestle the scope of their jurisdiction in interlocutory qualified-immunity appeals. One source of trouble is the need to reconcile the Supreme Court’s decisions in Johnson v. Jones and Scott v. Harris. As I’ve written about before, Johnson limits the scope of most qualified-immunity appeals to addressing only whether the facts assumed by the district court make out a clear constitutional violation; appellate courts generally lack jurisdiction to review whether the summary-judgment record supports those assumed facts. And most courts have read Scott to create an exception to this jurisdictional limit when something in the summary-judgment record blatantly contradicts the district court’s assumed facts.
But other ways of reconciling Johnson and Scott exist. Yesterday’s decision from the Sixth Circuit in Peterson v. Heymes illustrates what I call the “legal-issues” interpretation. Under this reading of Scott, the courts of appeals have jurisdiction to address all legal questions in a qualified-immunity appeal.
But that rule can’t be correct. It would effectively overrule Johnson. And it doesn’t make much sense.
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