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

In addition to narrowing the Johnson decision, the Behrens Court expanded jurisdiction by allowing multiple appeals. In doing so, it did not limit its holding to the unusual facts ofthe case, nor did it provide a detailed analysis of the three elements of the collateral order doctrine - final resolution, separability, and unreviewability. Although these three elements were implicit in the Court's discussion, what was pronounced was the "importance"118 aspect of the collateral order doctrine, which some commentators have labeled as a fourth element of the doctrine.119 In addition to discussing the importance of the qualified immunity defense, the Court broadly spoke of "finality" and relied on dicta from Mitchell to suggest that interlocutory appeals lie from both motions for dismissal and for summary judgment.120

Before the Behrens Court was the second interlocutory appeal from an order denying summary judgment based on qualified immunity. With respect to the question of finality, the Court held that a second interlocutory appeal from a denial of summary judgment based on qualified immunity is not less "final" because of a prior interlocutory appeal seeking dismissal on qualified immunity grounds.121 Such a conclusion seems obvious. After discovery, the record is fully established and an appellate court can be well situated to address the question of whether the law was clearly established.

The Court, however, in dicta provided expansive statements supporting the belief that interlocutory appeals would also lie from motions to dismiss.'22 Neither the majority nor the dissent thought that appeals from motions to dismiss should be per se barred under the collateral order doctrine.'23 The dissent only argued that an official should have only one appeal.'24 It did not argue that such an appeal should only come from an order denying summary judgment.125

The Court appeared to merge the final resolution element with the unreviewability element. It emphasized that motions to dismiss and motions for summary judgment raise different issues.126 A motion to dismiss, according to the Court, raises the question whether the "conduct as alleged in the complaint" violated clearly established law.127 A summary judgment motion questions whether the evidence indicates a violation of clearly established law.128 Because of these differences, the Court suggested that officials may need interlocutory appeals from both motions.129 The question of whether such appeals raise unreviewable issues is, however, different from the question of whether a particular motion conclusively determines an issue, as required by the collateral order doctrine.130

With respect to the second element, separability, the Court stated in a footnote that appellate courts should not resolve this issue by comparing the two interlocutory appeals to each other.131 Instead, according to the Court, separability focuses on whether the asserted issue for review, qualified immunity, is separate from the merits, not from a potential future appeal or from a prior appeal.132 Such a point is sound, but comparison of the appeals should be relevant for determining the issue of final resolution, not separability. The third element, unreviewability, was implicit in the Court's discussion of the different procedural questions for motions to dismiss and motions for summary judgment.133 The Court found that the qualified immunity issue raised in a motion to dismiss would not be reviewed in a motion for summary judgment.