Appellate Decisions

The Expansion of Qualified-Immunity Appeals

Qualified-immunity appeals are a problem in and of themselves. But courts have steadily expanded these appeals in ways that make them even worse.

June 9, 2020

By Bryan Lammon

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.

Qualified-immunity appeals generally

Mitchell held that that denials of qualified immunity can be immediately appealed under the collateral-order doctrine. That doctrine allows immediate appeals from district court orders that (1) conclusively resolve an issue, (2) involve an important issue that is completely separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. According to Mitchell, denials of qualified immunity meet all of these requirements. That’s a stretch. But Mitchell solidly established the appealability of qualified-immunity denials.

Crucial to Mitchell’s holding was the Court’s conclusion that qualified immunity is an immunity from suit. In addressing the collateral-order doctrine’s third requirement—that a district court decision be “effectively unreviewable” in an appeal after a final judgment—the Supreme Court said that qualified immunity was not a mere defense to liability. It was a protection from litigation itself. According to the Court, the costs, burdens, and uncertainties of litigation can distract government officials from their duties, inhibit swift action, and scare applicants from pursuing public service. Qualified immunity gives government officials a right to be free from these costs, burdens, and uncertainties so long as the officials did not violate clearly established law. And if a case erroneously proceeds through pretrial and trial, that right is irretrievably lost.

Expanding qualified-immunity appeals

Mitchell appeared to envision a narrow right to appeal. The Court emphasized that the court of appeals needed to address only whether (under the plaintiff’s allegations or evidence) the defendant violated clearly established law. Other issues were off the table.

But courts didn’t stop there. They’ve added issues to qualified-immunity appeals, increased the opportunities to appeal, allowed other parties to tag along, and undermined the few remaining limits on the scope of these appeals. Altogether, these expansions have made civil-rights litigation more difficult, expensive, and time consuming, often for no legitimate purpose.

The plausibility of the pleadings

For example, courts can now review the plausibility of the pleadings as part of a qualified-immunity appeal.

Discussing the narrow scope of qualified-immunity appeals, Mitchell said that a court hearing these appeals “need not . . . even determine whether the plaintiff’s allegations actually state a claim.” In other words, the appellate court would not need to review whether the complaint satisfied Federal Rule of Civil Procedure 8(a).

As Stephen Vladeck has pointed out, that’s no longer the case. Ashcroft v. Iqbal—known primarily for establishing the current regime of plausibility pleading—was also a qualified-immunity appeal. Before addressing whether the plaintiff had stated a claim, the Court held that the issue was properly in the court of appeals (and thus properly before the Supreme Court). Iqbal said that qualified-immunity appeals are proper so long as the district court’s decision denying immunity turned on an issue of law. The sufficiency of the pleadings was an issue of law that was inextricably intertwined with, or directly implicated by, qualified immunity. It was also a legal issue that a court of appeals was well suited to address.

So after Iqbal, courts hearing a qualified-immunity appeal can address whether the plaintiff’s complaint states a claim.

The Bivens question

Another example concerns the existence of a cause of action against federal officials.

In Wilkie v. Robbins, the Supreme Court held that courts can address the existence of a Bivens remedy as part of a qualified-immunity appeal. This inquiry—sometimes called the “Bivens question”—exists because the commonly used statute for civil rights suits (§ 1983) applies only to state actors. If a federal official violates a plaintiff’s rights, that plaintiff might be able to sue under the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. But a Bivens remedy doesn’t exist for all constitutional violations by federal officials. Wilkie added the Bivens question to the scope of qualified-immunity appeals.

Wilkie was a bad decision. As Stephen Vladeck and Laurence Tribe have separately explained, the Bivens question is not a necessary part of a qualified-immunity appeal, nor do the purposes of qualified-immunity appeals justify immediate review of the Bivens question. In other words, interlocutory review of the Bivens question serves no legitimate purpose.

Recent decisions have made Wilkie worse. Ziglar v. Abbasi and Hernandez v. Mesa (in addition to weakening Bivens itself) emphasized that courts must ask the Bivens question anytime a case arises in a “new context.” And the Court defined a new context so broadly (and vaguely) that nearly all federal defendants can argue that the claims against them arise in a new context, requiring a fresh Bivens inquiry. This new argument (or newly reinvigorated old argument) can be pursued both in the district court and in an immediate appeal. Given that interlocutory review of the Bivens question already served no legitimate purpose, Ziglar and Hernandez mean more time and effort spent (and wasted) addressing the Bivens question.

Multiple appeals

One qualified-immunity appeal in a case is bad. But the courts have held that defendants can appeal from several different district court decisions denying immunity, even if that means multiple appeals in a single action.

In Behrens v. Pelletier, the Supreme Court held that defendants can appeal from the denial of immunity at both the motion-to-dismiss and summary-judgment stages. Litigants pursuing a civil-rights suits must now gird themselves for two interlocutory appeals before reaching trial. Or maybe more. The courts of appeals have added to that list the denial of motions judgment as a matter of law and the grant of new trial motions.

Indeed, courts of appeals don’t always wait until the district court has actually reached a decision. They have held that delay in deciding a motion seeking qualified immunity amounts to an effective denial, such that the defendant can immediately appeal without the district court having actually reached a decision.

Municipal piggybacking

Courts have also allowed other parties—particularly municipalities—to join in a qualified-immunity appeal, even if those parties aren’t seeking immunity.

This municipal piggybacking is an exercise of what’s called pendent appellate jurisdiction. Pendent appellate jurisdiction allows courts of appeals to review a decision that would not normally be final or appealable when the court has jurisdiction over another, related decision. Municipalities regularly invoke pendent appellate jurisdiction to appeal alongside individual defendants. And several courts have entertained these appeals after concluding that the individual defendants did not violate the plaintiff’s rights. Municipal liability requires that the individual defendants violate the plaintiff’s rights. With no violation, there’s no liability. So upon concluding that a defendant did not violate the law, courts then go on to say that any claims against the municipality must be dismissed.

This is a bad practice. For one thing, it’s hard to reconcile with the Supreme Court’s decision in Swint v. Chambers County Commission. For another, it doesn’t make much sense. Courts say that pendent appellate jurisdiction exists because resolution of the individual defendant’s liability necessarily resolves the municipality’s liability. That’s backwards. Pendent jurisdiction should exist only when resolution of the non-appealable issue is necessary to resolve the appealable one. Courts can address an individual defendant’s immunity without even considering the municipality’s liability.

Municipal piggybacking is also profoundly unpragmatic. Jurisdiction over the municipality’s appeal turns on the outcome of the individual defendants’ appeal. So the parties must research, brief, and argue the issues, even though the court might conclude that it lacks jurisdiction. There’s no need for doing so. If the court of appeals holds that no constitutional violation occurred, the municipality can seek reconsideration in the district court. Given that the municipality cannot be liable unless a constitutional violation occurred—and given the court of appeals decision that no constitutional violation occurred—the motion should be straightforward and its disposition clear.

Undermining the one exception to the ever-expanding scope

There has been one possibly significant exception to the expansion of qualified-immunity appeals. Although defendants have a right to appeal from the denial of qualified immunity, the scope of that appeal is supposed to be limited when immunity was denied at summary judgment. The court of appeals can address whether, under the facts that the district took as true when denying qualified immunity, the defendant violated clearly established federal law. But under the Supreme Court’s decision in Johnson v. Jones, the court of appeals generally lacks jurisdiction to review whether the summary-judgment record supports those facts that the district court took as true. In other words, the court of appeals can address only the materiality of any fact disputes; it cannot review whether those disputes are genuine.

This limit on the scope of the appeal was supposed to simplify and streamline qualified-immunity appeals, focusing appellate courts on the more abstract legal questions and eliminating appeals involving record review. But it has been both undermined and ignored.

Scott v. Harris’s blatant-contradiction exception

The undermining comes from Scott v. Harris’s blatant-contradiction exception.

In Scott, the Supreme Court rejected the facts that the district court had taken as true, holding that a video of a high-speed car chase “blatantly contradicted” them. The Court did so, however, without mentioning Johnson or appellate jurisdiction. Courts of appeals have since struggled to reconcile Johnson’s jurisdictional limit with the analysis in Scott. Most have concluded that Scott created a blatant-contradiction exception to Johnson: an appellate court can review whether the summary-judgment record supports the facts that the district court assumed to be true when something in that record blatantly contradicts those assumed facts.

The blatant-contradiction exception is an unwieldy and inefficient method for determining appellate jurisdiction. Deciding whether the exception applies requires reviewing the summary-judgment record—precisely what Johnson meant to prevent. The exception is also wasteful, as courts often address the exception—and thus their appellate jurisdiction—only after full briefing on qualified immunity. All of this work is unnecessary. Blatant contradictions (assuming they can be reliably identified) are rare. Mandamus is a more appropriate tool for these cases.

Ignoring Johnson

Defendants also regularly ignore Johnson. Whether intentionally violating Johnson’s limits or not understanding them, these defendants argue their own version of the facts on appeal. I’ve see at least one example in almost every recent weekly roundup.

Courts normally rebuff these attempts. But the damage is done. The appeal added unnecessary work, expense, delay, and uncertainty to the case. District court proceedings have stalled. Parties have researched and briefed both jurisdiction and the merits of the qualified-immunity appeal. And months have passed between the notice of appeal and the eventual dismissal.

Although it’s defendants who are ignoring Johnson, courts do little to stop them. I have yet to see a defendant sanctioned for taking one of these appeals. Courts instead occasionally rebuke the defendants (or their counsel) for not following the rules. An argument in a recent Fourth Circuit case provides several examples. The panel repeatedly corrected defense counsel who refused to accept the district court’s assumed facts:

You have to accept the facts the way they were articulated by the district court to argue this kind of appeal . . . . You don’t want to accept those facts, it seems to me. You want to argue a different set of facts. You want to change the facts. And you can’t do that here. In this kind of appeal you just can’t do it.

At one point a member of the panel said that the defense was “twisting around and [wouldn’t] accept the facts as articulated by the district court.” When counsel suggested that the court look into the record, one of the judges again laid out the law for jurisdiction in qualified-immunity appeals:

[T]his is a special kind of appeal. You have a limited right for a police officer to appeal the denial of qualified immunity. But you have to accept the facts articulated by the lower court and bring them up here. And that’s the law. That’s the law.

When counsel again suggested that the court look at the facts, another judge said that “in the light most favorable to the opposing party, what happened here was horrendous.”