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

The purpose of this Article is to define when, under the collateral order doctrine, appellate courts havejurisdiction from interlocutory orders in cases that raise qualified immunity as a defense. Articulating the scope of appellate jurisdiction is important because appellate courts are overprotecting governmental officials and underprotecting constitutionally injured plaintiffs.

The judicially created qualified immunity defense balances conflicting interests. The defense-to-liability prong allows officials to act decisively, knowing liability for their actions arises only if they violated clearly established law. The immunity-from-suit prong protects society's and the officials' interests in not having to spend time defending meritless lawsuits. Opposing these interests is society's and a constitutionally injured plaintiff's interest in seeking redress for violations of clearly established law. Many appellate courts have failed to discern how interlocutory appeals can disrupt this delicate balance. In some circumstances, appellate courts have erroneously decided factual issues for the jury, imposed heightened pleading burdens, and afforded governmental officials the opportunity to create unnecessary delay.

To safeguard the balance of interests struck by qualified immunity, this Article also details an important limit on the erroneous assertion of appellate jurisdiction: the doctrine of frivolity,41 which allows both appellate courts and district courts to simultaneously possessjurisdiction. This radical construction of jurisdiction is necessary to avoid meritless delays and allow civil rights cases to proceed to trial.

Part II of this Article reveals that qualified immunity as a defense exists solely by judicial creation and interpretation.42 Part II examines the creation of the Harlow standard for qualified immunity and describes the defense-toliability prong - whether the law was clearly established, the central issue of interlocutory appeals.43

Parts III and IV focus on the Supreme Court's decisions on the collateral order doctrine as applied to the qualified immunity defense. Part III discusses the Court's expansive view of appellate jurisdiction.45 Part IV focuses on the Supreme Court's misguided view of pretrial motions in these interlocutory appeals, particularly motions for dismissal and for summary judgment.46 Part V provides a different perspective of interlocutory appeals by finding limits arising from the collateral order doctrine, the Federal Rules of Civil Procedure, and institutional expertise. It applies this different perspective to six different orders denying qualified immunity: (1)orders for dismissal; (2) orders for summary judgment before discovery; (3) orders denying protection from discovery; (4) orders for summaryjudgment after discovery; (5) orders denying qualified immunity because the defendant was a private person, not an official able to assert immunity; and (6) orders denying qualified immunity that are later declared by the district court to be frivolous.47 This section argues, contrary to both Mitchell and Behrens, that there is no appellate jurisdiction from an order refusing to dismiss based on qualified immunity. Instead, jurisdiction lies from motions for summary judgment, both before and after discovery, in some circumstances. It emphasizes that traditional summary judgment rules apply to these interlocutory appeals. Appellate courts should not invade the province ofthe district courts and juries by creating their own factual assumptions when district courts deny summary judgment because material facts are disputed. It also indicates ajurisdictional line for appeals from orders denying protection from discovery: jurisdiction lies if the district court postponed deciding whether the law was clearly established until discovery concluded, butjurisdiction does not exist if the district court merely determined that discovery was not overly broad. In addition to appellatejurisdiction for these orders, jurisdiction also lies when a district court determines in a motion for summary judgment before discovery that the defendant is a private person. This type of order is reviewable on an interlocutory appeal because it bars defendants from later raising qualified immunity, except on appeal from a final judgment.