Reforming Qualified-Immunity Appeals.

• Author: Lammon, Bryan

ABSTRACT 1137 TABLE OF CONTENTS 1139 I. INTRODUCTION 1141 II. MITCHELL V. FORSYTH & APPEALS FROM THE DENIAL OF QUALIFIED IMMUNITY 1148 A. Qualified Immunity 1148 B. Qualified-Immunity Appeals 1153 C. Data on Qualified-Immunity Appeals 1156 III. THE EXPANSIONS OF QUALIFIED-IMMUNITY APPEALS 1159 A. Expansions in Scope 1161 1. The Plausibility of the Pleadings 1162 2. The Bivens Question 1166 3. The Limit that Wasn't: The Factual Basis for Immunity Denials at Summary Judgment 1170 a. Undermining Johnson via the Blatant-Contradiction Exception 1172 b. Ignoring Johnson by Disputing the Factual Basis for Immunity Denials 1175 4. Other Legal Issues 1177 a. Evidence Admissibility 1178 b. Preclusion 1180 c. Waiver 1181 5. Pendent Parties and Issues 1182 a. Municipal Piggybacking 1183 b. Other Uses of Pendent Appellate Jurisdiction 1185 B. Expanded Opportunities 1188 C. The Reasons for Expansion 1191 1. The Common-Law Approach to Federal Appellate Jurisdiction 1192 2. The Enthusiasm for Qualified Immunity & Restrictive Civil Procedure 1194 IV. REFORMING QUALIFIED-IMMUNITY APPEALS 1195 A. Small Steps: Deterring Fact-Based Appeals 1196 B. Medium Steps: Limiting Blatant Contradictions and Municipal Piggybacking 1199 C. Large Steps: Overrule Behrens, Wilkie, Scott, and Iqbal 1201 D. Giant Steps: Overrule Mitchell 1201 1. Mitchell: An Incoherent, Irredeemable Opinion 1202 a. Mitchell's Reasoning 1202 b. Mitchell's Incoherence 1204 2. Replacing Qualified-Immunity Appeals, or Not 1208 a. To Replace or Not 1208 b. A Discretionary Alternative 1211 c. The Institution for Reform 1213 V. CONCLUSION 1215 VI. APPENDIX 1216 A. All Qualified-Immunity Appeals from 2017 through 2020 1216 B. Bivens Appeals 1217 C. Blatant-Contradiction Appeals 1217 I. INTRODUCTION

Qualified immunity is a special defense in civil-rights cases that shields government officials from litigation so long as they do not violate clearly established law. (1) There is so much that is wrong with qualified immunity. (2) Even without this defense, prevailing in civil-rights actions is no small feat. (3) The avenues for relief are narrow, practical obstacles abound, and the claims themselves can be difficult to prove. (4) Qualified immunity makes matters worse. Courts often require--and fail to find--a highly analogous prior case for the law to be clearly established. (5) Failure to find such a case can mean that no recourse exists under federal law for egregious constitutional violations. (6) And even when immunity does not result in the dismissal of a suit, it makes litigation more complicated, adds expense, and can delay any recovery for injured plaintiffs. (7)

To make matters worse, there is also the right to immediately appeal from the denial of qualified immunity--or what I call "qualified-immunity appeals." (8) Most defendants must wait until the end of district court proceedings before they can appeal the district court's rejection of a defense. (9) And for good reason--interlocutory appeals can delay resolution of an action, overburden courts of appeals, and be used by defendants to harass or wear down plaintiffs. The qualified-immunity defense is different. In Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity via the collateral-order doctrine. (10) Doing so was necessary, the Court thought, to shield defendants from the burdens of litigation when the law they allegedly violated was unclear. (11) This right to appeal gives defendants a powerful tool in civil-rights litigation. (12) Qualified-immunity appeals normally halt any progress in the district court while the appeal is pending. (13) These appeals add complexity, as lawyers must shift from the district court to the court of appeals (and then back, if the court of appeals affirms the denial of immunity). (14) Defendants can use these appeals to harass and wear down plaintiffs. (15) And even if the court of appeals affirms the immunity denial, months or even years have been added to the litigation with little or nothing to show for it. (16)

Qualified-immunity appeals are worse than some seem to realize. (17) Mitchell suggested a narrow right to appeal that was limited to the core qualified-immunity question: has the plaintiff shown--via the pleadings or the evidence at summary judgment--a violation of clearly established law? (18) But the federal courts didn't stop there. In the thirty-five years since Mitchell, they have steadily expanded both the scope and availability of qualified-immunity appeals. (19) Courts have also undermined--or stood by while defendants undermined--the purported limits on qualified-immunity appeals. (20) Nowadays, a court hearing a qualified-immunity appeal might address the plausibility of the pleadings, the availability of a cause of action, what facts a reasonable jury might find, the admissibility of evidence, preclusion issues, related claims, or even claims against other defendants who cannot themselves invoke qualified immunity. (21) There are at least four kinds of district court decisions that can produce a qualified-immunity appeal. (22) And there is no limit to the number of times defendants can appeal. (23)

These expansions are likely the result of multiple forces. One is the common law approach to federal appellate jurisdiction, whereby courts develop the law of appellate jurisdiction through case-by-case interpretations of what it means for a decision to be "final" under 28 U.S.C. [section] 1291. (24) This case-by-case approach invites growth through accretion. Though each expansion might seem minor when viewed alone, they combine to create a beast of a right to appeal. (25) And the tool for this case-by-case decisionmaking--interpretations of the term "final decision" in [section] 1291--is a blunt instrument that creates a right to appeal that normally lacks any discretion or nuance. This common-law approach has opened the door for the influence of other forces, particularly courts' enthusiasm for qualified immunity and the growing restrictions to court access. (26) Qualified-immunity appeals did not have to expand (or even exist). But when given the opportunity, these underlying forces ensured that any development was in the direction of expanding defendants' access to appellate courts, where those courts could be generous with immunity.

Whatever their cause, the expansions of qualified-immunity appeals cannot be justified on doctrinal, policy, or practical grounds. They're all doctrinally questionable, as Mitchell itself started out on shaky doctrinal grounds. Mitchell fudged the collateral-order doctrine to bring qualified-immunity appeals within it. (27) The fit has never been pretty. And Mitchell lies at the root of the now-expansive right to appeal from the denial of immunity. As a matter of theory and policy, the expansions of qualified-immunity appeals often have little or nothing to do with the justification for qualified-immunity appeals. The Mitchell Court thought that immediate appeals were necessary to protect government officials from the burdens of litigation when the law they allegedly violated was unclear. (28) But the subsequent growth of qualified-immunity appeals cannot be justified on that same ground, as these expansions seem to be nothing more than efforts to end civil-rights litigation at the earliest possible point. (29) The expansions of qualified-immunity appeals--and, indeed, qualified-immunity appeals themselves--are also pragmatically unsound. These appeals give defendants a right to halt district court proceedings while they seek immediate appellate review. These appeals can involve a variety of issues. Months or years are added to the litigation with little or no legitimate benefit. And a fair number of qualified-immunity appeals should never have been brought in the first place, as the defendants fail to raise any issues over which the court of appeals has jurisdiction.

As most readers likely know, there is a concerted push to reform or abolish qualified immunity. (30) Qualified-immunity appeals are yet another reason for doing so. (31) But the prospects for reform are uncertain. (32) And at least for the short term, qualified immunity is here to stay. (33)

If qualified immunity sticks around in anything resembling its current form, reformers should consider going after qualified-immunity appeals. (34) In a series of articles and essays, I have exposed a few of the ways in which courts have expanded qualified-immunity appeals beyond any justifiable scope. (35) In this article, I complete that expose and make the case for reforming those appeals. I ultimately conclude that qualified-immunity appeals must be torn out at their root: the Supreme Court's decision in Mitchell. Qualified-immunity appeals will be a problem so long as the denial of immunity is considered a "final decision," with the resultant right to appeal and case-by-case development of that right. The Supreme Court should accordingly overrule Mitchell. It will then be up to Congress or the Rules Committee to replace--or not replace--Mitchell. Any replacement should be, at most, a limited opportunity to appeal at the appellate court's discretion.

I proceed as follows. I begin Part II with some necessary background on qualified immunity, federal appellate jurisdiction, and the right to appeal from the denial of qualified immunity. I then present new data on the incidence, procedural posture, and outcomes of qualified-immunity appeals. I end Part II with a brief discussion of the effect that the right to appeal from the denial of qualified immunity can have on civil-rights litigation.

In Part III, I detail the many expansions of qualified-immunity appeals. I start with expansions to the scope of these appeals, which now allow for interlocutory review of a variety of issues, including:

* The plausibility of the pleadings;

* The availability of a Bivens remedy;

* A variety of...