Interlocutory appeals from orders denying qualified immunity: Determining the proper scope of appellate jurisdiction

Washington and Lee Law Review, Winter 1998 by Urbonya, Kathryn R

Kathryn R. Urbonya'

I. Introduction

The United States Supreme Court and federal courts of appeals have waged war on constitutional tort lawsuits.' The playing field is motion practice, not the courtroom.2 Today, the flurry of pretrial motions engulfs the appellate courts,3 not just the district courts. In the appellate courts, officials have asserted, before a trial has occurred4 and sometimes even before discovery,5 qualified immunity from paying damages for alleged constitutional violations. In deciding these pretrial appeals, appellate courts have assumed powers that they do not have. They have granted governmental officials qualified immunity by discarding jurisdictional limitations,6 rewriting the Federal Rules of Civil Procedure' and ignoring institutional restraints.8 Appellate courts have robbed constitutionally injured citizens of their day in court by granting motions for dismissal9 and summary judgment10 when the appellate courts lack jurisdiction.

The appellate courts have misread the qualified immunity standard articulated in Harlow v. Fitzgerald11 as granting appellate courts the power to change procedural rules and expand their jurisdiction.'2 In Harlow, the Supreme Court rewrote the qualified immunity standard to eliminate meritless suits as soon as procedurally possible.13 To further this purpose, Harlow created an objective reasonableness standard for qualified immunity, one that no longer considered whether officials acted maliciously.l4 Harlow discarded malice as a question because it raised a factual issue not capable of resolution in a motion for summary judgment.15 Under the new qualified immunity standard, officials had immunity if they acted in accordance with a standard of objective reasonableness.16 Courts were to determine objective reasonableness by examining case law and considering whether the law was clearly established.17 If officials violated clearly established law, then they would not have immunity; if they did not, they would have immunity.18 Harlow also stated that discovery should not be allowed until a court determines on summary judgment whether the law was "clearly established at the time [the challenged action occurred."19 In response to this standard, the appellate courts interpreted Harlow as creating procedural freedoms capable of protection on appeal.20 The qualified immunity standard now had two prongs: a defense-to-liability prong and an immunity-from-suit prong.21 The defense-to-liability prong freed officials from having to pay damages if they did not violate clearly established rights.22 In contrast, the immunity-from-suit prong gave officials procedural freedom from participating in unnecessary discovery or trials.23

Following Harlow, a significant problem emerged: When would appellate courts have jurisdiction to immediately review pretrial orders denying qualified immunity? Traditionally, federal appellate jurisdiction arises from the final judgment statute, which provides that "courts of appeals. . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States."24 Yet, when officials assert qualified immunity, the right to an immediate appeal nevertheless derives from this statute,25 not from the civil rights statute allowing constitutional tort lawsuits against state officials, 42 U.S.C. Sec 1983,26 nor from the United States Constitution, the source for actions against federal officials.27

Even though the explicit language of the final judgment statute requires "final decisions," the Court has declared that some interlocutory appeals under this jurisdictional statute are nevertheless "final" because of the judicially created "collateral order doctrine."28 Under this doctrine, nonfinal orders are appealable if they fall within "that small class"29 of orders that "[1] conclusively determine [a] disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment."30

In 1985, the Supreme Court in Mitchell v. Forsyth"1 interpreted the qualified immunity defense under these three jurisdictional requirements of the collateral order doctrine.32 A plurality of the Mitchell Court determined that an interlocutory appeal would protect off cials' immunity-from-suit.33 On appeal, a court could consider whether the law was clearly established before allowing discovery or a trial to proceed. If the law was not clearly established, then the official had qualified immunity and thus was not subject either to discovery or a trial.

Since Mitchell, appellate courts, including the Supreme Court, have discerned few jurisdictional limits.34 Not until ten years after recognizing the right to an interlocutory appeal in Mitchell did the Court in Johnson v. Jones35 properly articulate its first jurisdictional limitation.36 In Johnson, the Court held that no jurisdiction existed for appeals from district court orders denying summary judgment because of disputes as to material facts.37 However, the very next year, in Behrens v. Pelletier,38 the Court drastically narrowed the limitation articulated in Johnson.39 Such appeals would now lie if district courts also ruled that the law was clearly established.40