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Three Ideas for Discretionary Appeals
Get PDFDiscretionary 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
Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals
No full textWhen 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
Reforming Qualified-Immunity Appeals
Get PDFThe 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
Hall v. Hall: A Lose-Lose Case for Appellate Jurisdiction
Get PDFIn Hall v. Hall, the Supreme Court held that the resolution of a single action consolidated with other actions is a \u27final decision\u27\u27and thus immediately appealable\u27regardless of whether the other actions remain pending. But in deciding Hall, the Court had no good options. Like so many of its other decisions on appellate jurisdiction, the Court had to choose between a straightforward but pragmatically unsound rule (the option it ultimately took) or a pragmatic rule that would add to the confusion that already exists in matters of appellate jurisdiction. Hall was thus a classic lose-lose scenario. But Hall also illustrates the path forward: rulemaking. The federal courts alone cannot resolve the many issues that vex federal appellate jurisdiction. The Rules Committee must step in to reform this area of law
Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals
Get PDFWhen 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
Voluntary Dismissals, Jurisdiction & Waiving Appellate Review
No full textLitigants 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
Voluntary Dismissals, Jurisdiction & Waiving Appellate Review
Get PDFLitigants 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
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