Appellate Decisions

The Ninth Circuit on Qualified-Immunity Appeals, the Bivens Question, and Pendent Appellate Jurisdiction

The Ninth Circuit definitively held that the Bivens question is within the scope of qualified-immunity appeals, rejecting pre-Wilkie cases that said otherwise.

February 13, 2023

By Bryan Lammon

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

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