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 Supposedly Limited Scope of Qualified-Immunity Appeals
When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But the scope of that appeal is limited (or, at least, is supposed to be). 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.
Johnson v. Jones
This limit on the scope of qualified-immunity appeals comes from the Supreme Court’s decision in Johnson v. Jones. To be sure, some exceptions to Johnson exist. Johnson said that if a district court does not explain the facts it took to be true in denying immunity, the court of appeals can review the record itself to determine what the district court likely assumed to be true. And most courts of appeals hold that the Supreme Court’s decision in Scott v. Harris created a blatant-contradiction exception to Johnson: courts of appeals can review the genuineness of fact disputes when something in the record blatantly contradicts the version of events that the district court took as true.
But absent one of these exceptions to Johnson, the courts of appeals must take as given the factual basis for the district court’s immunity denial and cannot review the district court’s determination of what facts a reasonable factfinder could find. Johnson ended the opinion by saying as much: “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Indeed, the opinion repeatedly framed the issue as whether appellate courts can review the genuineness of fact disputes in qualified-immunity appeals.
Behrens v. Pelletier
The Supreme Court followed Johnson with Behrens v. Pelletier. Decided a year after Johnson, Behrens is known primarily for holding that defendants can appeal from the denial of qualified immunity at both the motion-to-dismiss and summary-judgment stages, even if that means two appeals in a single action. But the plaintiff in Behrens also argued that there was no appellate jurisdiction over the denial of qualified immunity because the district court had determined that genuine issues of material fact existed.
Behrens said that this argument misreads Johnson:
Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly “separable” from the plaintiff’s claim, and hence there is no “final decision” . . . .
But, the Court continued, denials of qualified immunity at summary judgment are appealable to the extent they raise abstract issues of law relating to immunity, such as whether the violated right was clearly established. So despite the district court’s conclusion in Behrens that material fact issues existed, the defendant could appeal to argue that the facts taken as true by the district court—that is, the facts that the district court thought a reasonable factfinder could find—did not amount to a clear constitutional violation.
The Eleventh Circuit’s Both-Questions Exception
The Eleventh Circuit’s recent decisions in Nelson v. Tompkins and Dempsey v. Sheriff nevertheless said that jurisdiction exists to review evidence-sufficiency issues so long as the defendant also challenges the clarity of the alleged constitutional violation. That is, appellate jurisdiction exists so long as a defendant raises both questions on appeal.
I’ve traced this rule back to the Eleventh Circuit’s decision in Johnson v. Clifton, which came out shortly after the Supreme Court’s decision in Johnson v. Jones. (Given the two cases start with a same-named party—and given the wider renown of the Supreme Court’s decision—I’ll refer to this Eleventh Circuit case as Clifton.) The Clifton court started with Johnson’s rule, noting that a court of appeals “can simply take, as given, the facts that the district court assumed when it denied summary judgment.” But the Clifton court then added an alternative option:
Or, the court of appeals can conduct its own review of the record in the light most favorable to the nonmoving party.
In support of this alternative option, the Eleventh Circuit first cited the established exception to Johnson for when the district court does not explain the facts it assumed to be true. The court of appeals then added that an appellate court can review the materiality of fact disputes “because such a determination is part of the core qualified immunity analysis.” Further, “even if such a determination were not part of the core qualified immunity analysis, it would be ‘inextricably intertwined’ with that analysis and within the appellate court’s pendent jurisdiction.”
Another clear statement of this both-questions exception can be found in Cottrell v. Caldwell. There, the Eleventh Circuit read Clifton (and another case) to hold “that the Supreme Court’s Johnson v. Jones decision did not affect [the] authority to decide, in the course of deciding the interlocutory appeal, those evidentiary sufficiency issues that are part and parcel of the core qualified immunity issues, i.e., the legal issues.” The court of appeals was “not required to make [its] own determination of the facts for summary judgment purposes”; it has “discretion to accept the district court’s findings, if they are adequate.” But the court of appeals is “not required to accept them.”
The Error of the Both-Questions Exception
I cannot reconcile the Eleventh Circuit’s both-questions exception with Johnson and Behrens. The latter case is particularly instructive. It explained that denials of qualified immunity at the summary-judgment stage are appealable to the extent they raise abstract legal issues concerning the existence or clarity of a constitutional violation. So challenging the existence or clarity of a constitutional violation does not open the door to other issues. Absent a recognized exception to Johnson, that door remains closed.
The Eleventh Circuit’s both-questions exception thus misreads Johnson and Behrens. In an appropriate case, the Eleventh Circuit should abrogate this line of authority.
Nelson v. Tompkins, 2024 WL 57022 (11th Cir. Jan. 5, 2024), available at the Eleventh Circuit and Westlaw
Dempsey v. Sheriff, Bay County Florida, 2024 WL 95441 (11th Cir. Jan. 9, 2024), available at the Eleventh Circuit and Westlaw