Reforming Qualified-Immunity Appeals

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those appeals. And the courts have given defendants nearly every opportunity to take qualified-immunity appeals, even if that means multiple appeals in a single action

Three Ideas for Discretionary Appeals

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a civil action to directly petition the court of appeals for an immediate appeal. And third, experiment with these and other possible reforms in a few circuits to see how they work. These ideas are admittedly preliminary. But we should start thinking about what discretionary appeals might look like in the future and how we might move towards that future

Voluntary Dismissals, Jurisdiction & Waiving Appellate Review

Litigants have long tried to manufacture a final, appealable decision by voluntarily dismissing their claims after an adverse interlocutory decision. Recently—and especially since the Supreme Court’s decision in Microsoft Corp. v. Baker—courts have thought that these dismissals created a jurisdictional problem. Either the voluntary dismissal did not produce a final decision, or the dismissal extinguished Article III jurisdiction. But the problem with these appeals is not jurisdictional. It’s waiver. A voluntary dismissal after an adverse interlocutory decision waives the right to appellate review. This Article shows the flaws in the jurisdictional rejection of this kind of manufactured finality and offers a much simpler reason for barring them. So when this issue makes its way back before the Supreme Court, the Court should recognize what the issue is, has been, and should remain: an issue of waiver

Finality, Appealability, and the Scope of Interlocutory Review

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be “final.” Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.” This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those before-the-end-of-proceedings appeals. Though related, these contexts are distinct, involve unique interests, and raise unique issues. Successful reform must fill all of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term

Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals

When a district court denies qualified immunity at summaryjudgment, defendants have a limited right to immediatelyappeal that decision. In Johnson v. Jones, the U.S. SupremeCourt held that courts hearing these appeals have jurisdictionto address only whether the facts the district court took as truein denying immunity amount to a clearly established violationof federal law. They lack jurisdiction to look behind the factsthat the district court assumed were true to see whether theevidence supports those facts. Despite this seemingly clear rule,defendants regularly flout Johnson’s jurisdictional limits,taking improper appeals that create extra work and imposewholly unnecessary costs and delays on civil rights plaintiffs.And the Court’s decision in Scott v. Harris—which appears toviolate Johnson’s limits without mentioning Johnson or evenappellate jurisdiction—has made the jurisdictional rulesgoverning qualified-immunity appeals even less certain.In this Article, I address the law governing jurisdiction inqualified-immunity appeals from summary judgment. I showthat Johnson can be read to mean only that the courts ofappeals generally lack jurisdiction to review whether thesummary-judgment record supports the district court’sassumed facts. I explain how to reconcile the analysis in Scottwith the rule in Johnson: Scott created an exception to thegeneral limit on reviewing the district court’s assumed factswhen something in the record blatantly contradicts those facts

Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

In Part I, I provide necessary background on the current re- gime of federal appellate jurisdiction before turning to the rise and fall of Gillespie and the balancing approach. Part I concludes by explaining how inconsistent Gillespie and the balancing approach are with the Supreme Court\u27s current approach to appellate jurisdiction. Part II turns to five areas in which the balancing approach persists in the courts of appeals and demonstrates the influence of the balancing approach, and the often case-by-case nature of decision-making, in each of these areas. And in Part III, I explore the implications of the balancing approach\u27s persistence for the major focus of the interlocutory appeals literature- reform. I explain how this persistence suggests that appellate judges cannot resist using some flexibility in defining their juris- diction. I conclude with a preliminary suggestion of how to account for flexibility\u27s allure: a jurisdictional regime that mixes categorical rules and discretion