By Mark R. Brown. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- Ph: 614-236-6590
- Fx: 614-236-6956
- mbrown@law.capital.edu
Abstract:
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court held that a district court decision denying defendants’ motion to dismiss “turned on an issue of law and rejected the defense of qualified immunity,” and was therefore immediately appealable under the collateral order doctrine that has been applied to purely legal questions tied into denials of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511 (1985). The Supreme Court in Iqbal rejected the plaintiff’s contention that “a qualified immunity appeal based solely on the complaint’s failure to state a claim”—rather than on the “ultimate” qualified immunity issue whether the acts allegedly committed by the defendants constituted a violation of clearly established law—“is not a proper subject of interlocutory jurisdiction.” “[A]ppellate jurisdiction is not so strictly confined,” the Court concluded.
The Court distinguished its previous decision in Johnson v. Jones, 515 U.S. 304 (1995), noting that “[t]he concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings.” Although the Iqbal Court acknowledged that “the categories of ‘fact-based’ and ‘abstract’ legal questions used to guide the Court’s decision in Johnson are not well defined,” it thought that the decision to deny the defendants’ motion to dismiss “falls well within the latter class.” The Court reasoned that the case required an appellate court to “consider[] only the allegations contained within the four corners of [the plaintiff’s] complaint,” and that the decision whether a complaint “has the ‘heft’ to state a claim is a task well within an appellate court’s core competency.” “Evaluating the sufficiency of a complaint is not a ‘fact-based’ question of law,” the Iqbal Court concluded, and therefore “the problem the Court sought to avoid in Johnson is not implicated here.”
The Supreme Court took a similar approach in Scott v. Harris, 127 S. Ct. 1769 (2007), a case involving a high-speed chase that resulted in serious injury to the victim. The District Court there refused to award qualified immunity to police because of many factual matters in dispute. The Eleventh Circuit affirmed, finding that it did not have interlocutory jurisdiction over facts. After viewing videos of the chase and ramming—which were produced by deputies whose cameras automatically filmed the events—Justice Scalia concluded for the Court that the deputies’ force was not excessive within the meaning of the Fourth Amendment. In reaching this conclusion, Justice Scalia implicitly modified the holding in Johnson v. Jones: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 1776. “[Harris’s] version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.” Id.
What do Scott and Iqbal do to Johnson v. Jones and its limit on interlocutory appellate fact-finding? The Circuits following Johnson had uniformly eschewed fact-finding on interlocutory appeal because jurisdiction was lacking. In Hulen v. Yates, 322 F.3d 1229 (10th Cir. 2003), for example, where a District Court had denied summary judgment to a defendant who allegedly violated the First Amendment by transferring a public-sector employee, the Tenth Circuit stated that it could “not resolve Defendants’ claims that [the plaintiff] cannot show any personal participation by these Defendants in the alleged retaliatory transfer because of his motivation. This is an issue of evidentiary sufficiency, over which we lack jurisdiction in a qualified immunity interlocutory appeal.” Similarly, in Hamilton v. Leavy, 322 F.3d 776, 782 (3d Cir. 2002), a case involving deliberate indifference to a prisoner’s Eighth Amendment rights, the Third Circuit refused to review “the District Court’s ‘identification of the facts that are subject to genuine dispute,’ but instead … review[ed] the legal issues in light of the facts that the District Court determined had sufficient evidentiary support for summary judgment purposes.”
Scott has been given a limited reach by the Courts of Appeals. Most have concluded that it is limited to cases that have video—something that can easily and conclusively prove the facts of a case. Iqbal now suggests that a broader exception to Johnson v. Jones. If true, it may be that appellate interlocutory fact-finding in the context of qualified immunity is ordinarily appropriate. And if this is the case, qualified immunity will (unfortunately) prove more common in the future.