The Sixth Circuit said that a challenge to the factual basis for a qualified-immunity denial was frivolous. Here’s hoping other courts do the same.
March 30, 2021
Fact-based qualified-immunity appeals—that is, appeals from the denial of immunity in which a defendant challenges the factual basis for the immunity denial—are a problem in the courts of appeals. With rare and narrow exceptions, the courts of appeals lack jurisdiction over these appeals. Defendants nevertheless take these appeals with some frequency, adding wholly unnecessary complexity, expense, and delay to civil-rights litigation. The courts of appeals have not done enough to deter these appeals. And I argued in a recent essay that courts should start sanctioning defendants who take them. (You can read a draft of the essay at SSRN; comments are welcome.) Perhaps that would finally deter this abuse of qualified-immunity appeals.
Sanctions have been rare. But in last week’s Howlett v. City of Warren, the Sixth Circuit indicated that they might be appropriate. When the defendants in Howlett appealed from an order that (among other things) denied qualified immunity, a question arose as to the Sixth Circuit’s jurisdiction. In postponing a decision on a motion to dismiss the appeal, the court warned the defendants of the limits on its interlocutory jurisdiction. The defendants nevertheless appealed to challenge the factual basis for district court’s immunity denial. The Sixth Circuit accordingly dismissed the appeal. The court also ordered the defendants to show cause as to why the court should not sanction them.
Defendants shouldn’t need a reminder of this limit on the scope of qualified-immunity appeals. After all, the Supreme Court case establishing this limit is over 25 years old. Hopefully Howlett will dispel any lingering uncertainty and deter some future abuses of qualified-immunity appeals.
The Limit on Challenging the Facts in Qualified-Immunity Appeals
Defendants have a right to immediately appeal from the denial of qualified immunity. But there is one important limit on the scope of those appeals. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.
Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation. These improper appeals are also one of the main reasons why—should qualified immunity stick around in its current or an altered form—the rules governing qualified-immunity appeals need to change.
The Howlett Litigation
The plaintiff in Howlett was a former police officer. Simplifying a little bit, the plaintiff brought sex- and race-discrimination claims under both Title VII and § 1983. The defendants—individual police officers and the city that employed them—eventually sought summary judgment on all of the plaintiff’s claims.
The district court determined that summary judgment was not appropriate. According to the district court, a reasonable jury could conclude that the individual defendants intentionally discriminated against her. A reasonable jury could also find that this discrimination was due to the city’s custom or policy. So genuine fact issues existed on all of the plaintiff’s claims. Summary judgment—including summary judgment due to qualified immunity—was thus unwarranted.
Both the individual defendants and the city then appealed.
The Improper Appeal
Sometime after the defendants filed their notice of appeal, the plaintiff in Howlett moved to dismiss the appeal for a lack of jurisdiction. The Sixth Circuit decided to defer resolution of that motion, leaving it for the panel to decide. But in its order doing so, the court explained to the defendants that they cannot appeal to argue the genuineness of any fact disputes.
The defendants nevertheless appealed to challenge the factual basis for the district court’s denial of immunity. They also appealed the denial of summary judgment on the Title VII and municipal-liability claims. This was wholly improper. And the Sixth Circuit’s description of the appeal is worth quoting at length:
Defendants’ appeal does not meet any exception to the final order rule, and their filings are completely devoid of any argument to that effect. Instead, not only do Defendants repeatedly and explicitly challenge the sufficiency of the evidence underlying Plaintiff’s racial and sexual discrimination claims, but they also appeal the denial of summary judgment on Plaintiff’s Title VII and [municipal-liability] claims against the City, which do not implicate qualified immunity. Defendants never suggest, let alone argue, that their qualified immunity appeals seek to resolve a legal question, and they only justify their appeal relating to the claims against the City by gesturing to “the crystallizing role of . . . Federal Rule of Civil Procedure 56.” Defendants make no effort to address Plaintiff’s well-founded concerns that this Court lacks jurisdiction over their appeal, but decided to devote much of their reply to accusing Plaintiff of various forms of litigation misconduct, including “duplicity” and “subterfuge” regarding her characterization of the proceedings before the district court.
Defendants’ failure to address the jurisdictional issues with their appeal flagrantly disregarded our prior order, which warned that a defendant may not pursue an interlocutory appeal of a denial of qualified immunity that turns on a genuine issue of material fact. Rather than heeding this admonition and limiting their appeal to disputing the district court’s resolution of the legal issues underlying their claims to qualified immunity, Defendants briefed “evidence sufficiency” challenges to the district court’s qualified immunity determinations and pursued an appeal of the district court’s denial of summary judgment on Plaintiff’s Title VII and [municipal-liability] claims against the City.
The court accordingly dismissed the appeal for a lack of jurisdiction.
The Sixth Circuit also determined that sanctions could be appropriate. The Sixth Circuit had explained to these defendants that they could not challenge challenge the factual basis for the immunity denial. The defendants nevertheless did so. Their appeal was accordingly frivolous. So the Sixth Circuit ordered the plaintiffs to set forth their costs and fees in defending the appeal, after which the defendants could show cause why they should not be sanctioned.
A Note on Delay
One final note to illustrate the cost of these fact-based qualified-immunity appeals. As the court noted, frivolous appeals burden appellees and the court of appeals, and they distract the court from other appeals that merit attention.
But when a qualified-immunity appeal is frivolous, there’s an additional cost. Since these appeals normally halt district court proceedings, they can add significant delays to civil-rights litigation.
Howlett illustrates as much. The defendants appealed on December 18, 2019. A day later, they moved to stay district court proceedings. The district court canceled a scheduled final pretrial conference and jury trial pending its decision on the motion to stay. Several months later, in August 2020, the district court stayed further proceedings. The docket shows little activity between the notice of appeal and the stay, and it shows no activity between the stay and the Sixth Circuit’s decision. All told, the appeal took 463 days. With no signs of significant progress in the underlying case, it appears that the parties are back where they were 15 months ago.
Howlett v. City of Warren, 2021 WL 1149694 (6th Cir. Mar. 25, 2021), available at the Sixth Circuit and Westlaw.