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 two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.
Continue reading....
I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]
Continue reading....
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record […]
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 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....Recent Posts
In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.
Continue reading....
In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]
Continue reading....
I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]
Continue reading....
Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]
Continue reading....
Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.
Continue reading....