IX. Interlocutory Appeals

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IX. INTERLOCUTORY APPEALS

Unlike many state court systems, the general rule in the federal system is that only final orders may be appealed; interlocutory appeals are heavily disfavored.¹⁹² Appeals substantially prolong the resolution of a case, and appellate courts dislike dealing with the same case, piecemeal, multiple times. However, § 1983 suits in which the defendant claims an entitlement to immunity reflect a judicially created exception to the "finality" rule.

The rationale for this exception is that certain orders, although interlocutory, determine with finality important claims separate and independent from those on which the litigation is based. These "collateral" claims cannot be fully vindicated if appealed at the conclusion of the entire litigation.¹⁹³Individual defendants' claims of either qualified or absolute immunity seem to fit well within this rationale because the asserted right is immunity from suit, not just from liability. This right could never be effectively vindicated after the suit is over.¹⁹⁴ In Mitchell v. Forsyth, the Supreme Court held that trial courts' denials of individual defendants' summary judgment motions based on immunity claims are immediately appealable "collateral orders" for this reason.¹⁹⁵

The Mitchell Court, apparently reassuring itself that it was not creating a monster, reasoned that it would be unnecessary for an appellate court to resolve disputed facts in this type of interlocutory appeal: "on the contrary, all it need determine is an issue of law."¹⁹⁶ As with some of the Court's other pronouncements about how individual immunities are to be implemented, this opinion led to uncertainty for litigants and chaos in the lower courts. Some but not all of the confusion has been resolved by later Supreme Court cases.

A. What Legal Claims Trigger a Defendant's Right to Interlocutory Appeal?

For the reasons outlined previously, an individual defendant whose dispositive motion based on qualified or absolute immunity is denied has a right to interlocutory appeal if the denial implicates a legal issue, as opposed to a purely factual dispute.¹⁹⁷ The difficulty, of course, is in sorting out what is really denial of a qualified immunity claim on legal grounds and what is denial of a claim of "I didn't do it" or "I didn't do it like that" from a defendant whose case situation includes qualified immunity issues.¹⁹⁸

As described by the Mitchell Court, the issue on appeal is whether, accepting the plaintiff's version of the facts, "the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions." Or, if the trial court denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the conduct violated clearly established law, "whether the law clearly proscribed the actions the defendant claims he took."¹⁹⁹

An interlocutory appeal is not available, however, to challenge the district court's determination of what fact issues are "genuine." Most cases in which defendants claim qualified immunity involve hotly disputed facts about defendants' actions and their circumstances. These disputed fact issues are frequently closely intertwined with the issue of qualified immunity, if not nearly identical with it—for example, in excessive force cases. In these cases, defendants can move for summary judgment on various grounds—some involving the "clearly settled" law applicable to their conduct, and some alleging that fact issues unrelated to qualified immunity must be resolved in their favor as a matter of law. And some motions raise harder-to-classify summary judgment claims, grounded in qualified immunity and involving disputed facts. Many of these appellate situations are clearly far afield from the superficial simplicity and clarity of Mitchell v. Forsyth's analysis.

Before Johnson v. Jones, the circuits had reached varying results in their attempts to sort out the situations in which denials of qualified immunity claims would trigger interlocutory appellate jurisdiction.²⁰⁰ One major question was whether individual defendants claiming qualified immunity could properly invoke interlocutory appellate jurisdiction when their "evidence sufficiency" summary judgment claims were denied. In Johnson v. Jones, the Supreme Court said no.

The Johnson v. Jones interlocutory appeal centered on three individual defendants' summary judgment contentions in an excessive force case. These defendants argued that there was no evidence they were involved in beating the plaintiff, or even that they observed anyone else doing so. The district court denied their motion, and the Seventh Circuit dismissed their appeal. The Seventh Circuit panel reasoned that this type of "evidence sufficiency" dispute simply did not trigger interlocutory appellate review, despite the defendants' claims that their qualified immunity from suit would be irretrievably lost without it.²⁰¹

The Supreme Court affirmed. In doing so, the Court reviewed and explained the nature and purpose of interlocutory appellate jurisdiction in cases involving immunity claims. According to the Court, this jurisdiction is properly usable to determine what law was "clearly established" at the time of the defendants' actions when this would control the outcome of their summary judgment motion.²⁰² Interlocutory appellate jurisdiction, however, may not properly be invoked to review whether factual disputes are "genuine" for summary judgment purposes. To find otherwise would contradict the rationale and purpose of the collateral order doctrine as originally applied to immunity claims in Mitchell. Also, it would create an unnecessary and burdensome chore for the appellate courts; that is, they would frequently be faced with a detailed examination of complex evidentiary materials in order to rule on factual issues, a task for which trial courts are better suited. In many cases, the appellate court would probably have to look at the same case's factual record twice—once on interlocutory appeal and later, in a more developed state, after trial.

The main thrust of the Court's Johnson opinion is a renewed emphasis on the language of Mitchell v. Forsyth. The Court spoke in Mitchell of an interlocutory appellate procedure available for the resolution of legal, not factual, disputes. In effect, the Court ratified the view of the circuits that contended all along the interlocutory appellate process was not properly used to entertain claims of "We didn't do it."²⁰³ The Court acknowledged that its relatively narrow view of the circumstances in which interlocutory appellate jurisdiction was available would serve to limit the practical enforceability of immunities, but, it indicated, this was unavoidable.²⁰⁴

The Johnson opinion encouraged trial courts' rulings on qualified immunity summary judgment motions to include a list of facts they took to be established for the purpose of their ruling. This, the Court thought, would aid the appellate courts in their threshold determination of whether they had interlocutory appellate jurisdiction.

But what if the district court does not do so? Should the appeals court sort out the factual record for itself and arrive at a determination of what facts are established, viewed in the form most favorable to the respondent? Or should it focus on what the district court "likely assumed"? In Winfield v. Bass,²⁰⁵ the en banc Fourth Circuit wrestled with such a situation. The majority held that the court must examine the factual record itself and reach a determination (in the light most favorable to the respondent) of what has been established. Then the court should make legal conclusions based on these findings.

The label the district court gives to its decision (i.e., "legal" or "factual") does not determine whether interlocutory appeal will be allowable. Rather, if the appellate court concludes that a legal issue controls the outcome of the defendant's immunity claim, interlocutory appeal is proper. This is true whether or not the district court approached the case in this manner.²⁰⁶

For example, in Sanderfer v. Nichols,²⁰⁷ the district court denied a defendant's qualified immunity claim. The court's stated basis was that "more than a scintilla" of evidence supported the plaintiff's version of events. The Sixth Circuit nevertheless found it had interlocutory appellate jurisdiction. In the appellate panel's view, the plaintiff's version of the facts, even if true, failed to state a constitutional violation.²⁰⁸ This ruling therefore served to protect a defendant's correctly asserted right not to be subject to the litigation process. This was an appropriate use of interlocutory appellate jurisdiction, despite the district court's characterization of the matter as a factual dispute.

Defendants whose summary judgment motions are denied based on "material disputed fact issues" should, if justified, argue that the disputed facts are not material to the qualified immunity determination. Whether they are or are not is a question of law, appropriate for interlocutory...