Alternatives to Qualified-Immunity Appeals
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.
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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 Kentucky law).…
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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 Procedure 59(e), despite the motion’s relying on a local rule rather than Rule 59(e).…
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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 decisions to defer ruling on qualified immunity until after discovery.…
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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.…
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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.…
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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 jurisdiction.…
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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 Kentucky law).…
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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.…
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Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction.
But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right.…
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In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case.…
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