The Supreme Court shoehorned qualified-immunity appeals into the collateral-order doctrine. The fit isn’t good, and the consequences have been worse.
June 7, 2020
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.
When defendants flout the jurisdictional limits on the scope of interlocutory qualified-immunity appeals, everyone loses.
February 5, 2020
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.
The rules for jurisdiction in qualified-immunity appeals needs to be clarified—and Scott v. Harris’s exception to those rules needs to go.
January 30, 2020
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.
Koh v. Ustich shows the need to screen fact-based qualified-immunity appeals before they impose unnecessary costs and delays in civil rights cases.
August 16, 2019
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.
The Fifth Circuit issued a sharp reminder of the jurisdictional limits on addressing the genuineness of fact disputes in qualified-immunity appeals.
August 11, 2019
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?
The Third Circuit’s “Forbes rule” requires that district courts explain why they’re denying qualified immunity. Other courts should take note.
August 11, 2019
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.
A few Sixth Circuit cases hold that the scope of review in qualified-immunity appeals extends to all legal questions. That can’t be right.
July 26, 2019
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.
Michael Solimine's new essay challenges the current regime of interlocutory qualified-immunity appeals.
June 4, 2019
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.
Underwood v. Barrett illustrates how Scott v. Harris affected procedure for both summary judgment and appellate jurisdiction.
May 31, 2019
I recently wrote about the Seventh Circuit’s decision in Gant v. Hartman, which illustrated Scott v. Harris’s effect on interlocutory appeals. But that wasn’t Scott’s only impact on civil procedure. It has also affected summary-judgment practice. A recent decision from the First Circuit—Underwood v. Barrett—illustrates both of the procedural changes that Scott wrought. And while the changes to summary judgment are hard to avoid (despite a district court’s odd efforts to do so), I think Underwood spoke a bit too broadly about appellate jurisdiction.
The Seventh Circuit recently declined to apply Scott’s blatant-contradiction exception to Johnson v. Jones. But it never should have been asked to do so; this exception is neither practically sound nor needed.
May 19, 2019
Update: My article on this issue—Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now available to read on SSRN.
Last week, in Gant v. Hartman, the Seventh Circuit held that it lacked jurisdiction under Johnson v. Jones to review an interlocutory qualified-immunity appeal when the defendant failed to accept the facts assumed by the district court. In the course of doing so, the court held that Scott v. Harris’s blatant-contradiction exception to Johnson did not apply, as nothing in the summary-judgment record blatantly contradicted the district court’s assumed facts. Most courts have read Scott to create this blatant-contradiction exception. And I’m currently working on an article arguing that this is the best way to reconcile Johnson and Scott. But I also argue that the blatant-contradiction exception is an unpragmatic and unnecessary rule that should be rejected.
This post covers the decision in Gant, including background on Johnson and Scott. It then briefly addresses why Scott’s blatant-contradiction exception is an impractical rule of appellate jurisdiction.