The Ninth Circuit on Qualified-Immunity Appeals, the Bivens Question, and Pendent Appellate Jurisdiction
In Pettibone v. Russell, the Ninth Circuit categorically held that it could address the Bivens question as part of a qualified-immunity appeal. In the course of doing so, the court rejected its older cases holding to the contrary.
The Ninth Circuit’s Pre-Wilkie Caselaw on Appealing the Bivens Question
The Bivens question asks if a damages action exists for a federal official’s unconstitutional conduct. In a series of cases dating from 1988 to at least 2004, the Ninth Circuit had declined to address the Bivens question as part of a qualified-immunity appeal. The court thought that it could do so only via the doctrine of pendent appellate jurisdiction, and the Bivens question was neither inextricably intertwined with immunity nor necessary to review the denial of immunity.
Wilkie’s Impact
But in 2007’s Wilkie v. Robbins, the Supreme Court said that appellate courts can review the Bivens question as part of a qualified-immunity appeal.
In Pettibone, the Ninth Circuit noted that its post-Wilkie cases had read Wilkie to categorically permit review of the Bivens question as part of a qualified-immunity appeal. But the Ninth Circuit had never expressly addressed its pre-Wilkie decisions holding to the contrary. The Pettibone panel said that those pre-Wilkie cases were no longer good law. The court added that, in so holding, it was joining every other circuit to have addressed the issue after Wilkie.
Including the Bivens Question
Interestingly, the Ninth Circuit read Wilkie not to use pendent appellate jurisdiction. Wilkie instead “said, without elaboration, that the recognition of the underlying Bivens cause of action was ‘directly implicated by the defense of qualified immunity and properly before [the Supreme Court] on interlocutory appeal.’” (Quoting Hartman v. Moore.) So “Wilkie establishes that, in an interlocutory appeal from a denial of qualified immunity, [the courts of appeals] necessarily have jurisdiction to decide whether an underlying Bivens cause of action exists.”
I’ve written a bit about the inclusion of the Bivens question in the scope of qualified-immunity appeals. I think I agree with Pettibone that Wilkie was not an exercise of pendent appellate jurisdiction. (Though reasonable minds disagree on this, including an unfortunately denied cert petition from last year.) But I also think Wilkie was wrong—there’s zero need to address the Bivens question as part of a qualified-immunity appeal. And including the Bivens question within the scope of those appeals adds unnecessary complexity, expense, and delay to civil-rights actions.
Pettibone v. Russell, 2023 WL 1458886 (9th Cir. Feb. 2, 2023), available at the Ninth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
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 […]
Continue reading....
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 […]
Continue reading....
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case. In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal. So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But […]
Continue reading....
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 […]
Continue reading....
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. Like the Third and Sixth […]
Continue reading....Recent Posts
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 […]
Continue reading....
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 […]
Continue reading....
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.
Continue reading....
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. Judge […]
Continue reading....
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. The […]
Continue reading....