By: Bryan Lammon*
Abstract
Unlike their employees, municipal defendants in civil-rights suits cannot invoke qualified immunity. Municipal defendants also don’t have a right to appeal if a district court refuses to dismiss a municipal claim. These defendants have nevertheless largely succeeded in tagging along when their employees appeal from the denial of qualified immunity. Invoking pendent appellate jurisdiction, most courts of appeals will allow these municipal appeals so long as—in the employees’ qualified-immunity appeal—the court concludes that no constitutional violation occurred.
This practice—which I call “municipal piggybacking”—is wholly unnecessary. Jurisdiction in municipal appeals turns entirely on the outcome of the employees’ appeals, so no one knows at the outset whether appellate jurisdiction exists. The parties nevertheless spend time researching, briefing, and arguing the municipal claim. If the court of appeals ultimately refuses to extend pendent appellate jurisdiction, all that effort is wasted. Municipal piggybacking serves no legitimate purpose. It’s merely a tool for defendants to wear down civil-rights plaintiffs.
Municipal piggybacking needs to stop. But it’s not the only aspect of qualified-immunity appeals that needs reform. A unique set of appellate procedures accompany qualified immunity. Defendants have a right to appeal from the denial of immunity, and courts have steadily expanded the scope and availability of those appeals. These expansions serve little or no legitimate purpose. They instead make civil-rights litigation all the more complex, expensive, and time consuming. Qualified-immunity appeals need to change, whether that means limiting their scope and availability, making them discretionary, or doing away with them entirely. And the Rules Committee might be the best forum for those reforms.
*Professor, University of Toledo College of Law. Thanks to participants in the Sixth Annual Civil Procedure Workshop for feedback on a draft. Thanks also to the University of Toledo for funding this project. And special thanks, as always, to Nicole Porter.