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

Part V also discusses an important check on these orders - the doctrine of dualjurisdiction for appeals from frivolous orders.48 In some circumstances, both the district court and appellate court have jurisdiction: The district court issues an order declaring the appeal to be frivolous and continues its proceedings, and the appellate court simultaneously addresses the qualified immunity question. This strange jurisdictional creature properly bars officials from taking frivolous appeals. Frivolous appeals simply do not protect the interests safeguarded in Harlow's immunity-from-suit prong.

The Article concludes by reflecting on how appellate courts properly protect the balance struck by the defense of qualified immunity by recognizing their limited, but important, role on interlocutory appeals.49

II. The Immunity-from-Suit Prong Implied in the Harlow Standard of Qualified Immunity

The qualified immunity defense exists solely by judicial interpretation of Congress's intent.50 It applies to both state and federal officials,51 even though the text of 42 U.S.C. 1983 states that "[e]very person. . . shall be liable" for constitutional violations52 and even though Congress has not passed a statute applying this defense to federal officials. The qualified immunity defense for these officials is the result of the Court's ascertaining Congress's intent in passing 1983 in 1871 and its silence in permitting constitutional tort actions against federal officials.

Ascertaining Congress's intent in this area has been difficult for the Supreme Court.53 At one point, the Court stated that qualified immunity was dependent upon the "scope of discretion and responsibilities of the office.''54 It also stated that officials lose their qualified immunity by acting in two ways: violating undisputed law or acting maliciously.55

In 1982, however, the Harlow Court revised the qualified immunity standard without an exegesis as to what Congress must have intended.56 The Court jettisoned the malicious component of the qualified immunity defense. It retained, however, the other component -- whether the official violated undisputed law. This component became the "clearly established" law standard of Harlow. In 1987, the Court in Anderson v. Creighton57 discarded linking the scope of the immunity with the level of responsibility.58 Instead, it found that qualified immunity applies to all officials performing "discretionary" tasks.59

The Harlow Court rejected the malice component on pure policy grounds. It declared that such a factual question was eating away at the time officials had to perform their duties, harming both society and the decision making power of officials. With Harlow, procedures suddenly became very important.

In 1982, however, the Harlow Court had not yet experienced the effects of its own 1986 summary judgment make-over of Federal Rule of Civil Procedure 56 that occurred in a trilogy of cases: Matsushita Electric lndustrial Co. v. Zenith Radio,60 Anderson v. Liberty Lobby, Inc.,61 and Celotex Corp. v. Catrett.62 The new view of summary judgment allowed courts to dispose of cases in ways that they could not before. A state-of-mind issue was not always a bar to summary judgment.63 In some cases, the nonmovant would have to provide stronger evidence to oppose summary judgment,64 and the movant could point to the absence of factual support for the nonmovant's claim.65 Instead of reinterpreting the law of summary judgment as it did in 1986, the Harlow Court simply declared that the qualified immunity defense could be resolved before discovery and on summary judgment.