Bryan Lammon1Bryan Lammon is a professor at the University of Toledo College of Law. He thanks participants in a breakout session at the Fourth Annual Civil Procedure Workshop. And special thanks, as always, to Nicole Porter.

I. Introduction

Qualified immunity is awful. It inhibits government accountability and precludes recovery for victims of government misconduct. But it’s not just the substantive defense that’s a problem. Qualified immunity comes with its own set of appellate-procedure rules that make litigating civil-rights suits complicated, expensive, and time consuming. Government officials have a right to appeal from the denial of immunity. That right—standing alone—is an immense procedural hurdle. And courts have steadily expanded the scope and availability of these appeals in ways that grind district court proceedings to a halt.

One example of this expansion is the inclusion of the so-called Bivens question in the scope of review. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court recognized an implied constitutional cause of action against federal officials when those officials violate federal law. But a Bivens claim is not available for every constitutional violation by a federal official. Courts must sometimes ask the Bivens question: does a cause of action exist for this alleged violation? And in Wilkie v. Robbins, the Supreme Court held that the courts of appeals can address the existence of a Bivens action as part of a qualified-immunity appeal.

Wilkie was a bad decision. Immediate review of the Bivens question does nothing but short-circuit civil-rights suits against federal officials. Recent Supreme Court decisions have made Wilkie worse. Ziglar v. Abbasi and Hernandez v. Mesa restricted the availability of Bivens actions and raised questions about Bivens’s long-term prospects. They also turned the Bivens inquiry into an immensely context-dependent one. Anytime a case arises in a “new context,” courts must assess whether a Bivens action is available. And the Supreme Court defined “new context” so broadly that defendants in almost every (if not every) suit can make a non-frivolous argument that a Bivens analysis is required. So now nearly every civil-rights suit against a federal official will require addressing the Bivens question both in the district court and, if the district court holds that a Bivens remedy exists, in an interlocutory qualified-immunity appeal.

Inclusion of the Bivens question is just one way in which courts have expanded the scope and availability of qualified-immunity appeals. Should qualified immunity stick around in its current or even an altered form, the appellate-jurisdiction rules that accompany it need to change. Like the substantive defense of qualified immunity, courts or Congress can make these changes. But reform efforts targeting these procedural rules have an additional audience: the Rules Committee. Congress has authorized the Supreme Court to create rules of appellate jurisdiction via the rulemaking process. The Committee could accordingly narrow qualified-immunity appeals. It could even remove the right to appeal the denial of qualified immunity, making the appeals discretionary or doing away with them entirely. Reform via rules, however, can take a while. So the time to start working on reforming qualified-immunity appeals is now.

II. Interlocutory Appeals of the Bivens Question

A.   Qualified-Immunity Appeals Generally

Qualified immunity is a special defense in civil rights suits that seek damages from individual government officials. When plaintiffs allege that government officials violated their federal rights, qualified immunity requires that the right at issue be “clearly established” before the officials can be liable for damages. This protection exists to ensure that government officials have sufficient notice that their actions violate the law and allow for those officials to make reasonable mistakes without incurring liability. The thought is that government officials need to exercise their discretion without concern about the cost and inconvenience of litigation unless that exercise of discretion is clearly unconstitutional. This rationale has been called into question.2See, e.g., James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz, The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 Stan. L. Rev. 561, 599 (2020); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1803–14 (2018); Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 56–57 (2017). But it’s still the rationale.

In Mitchell v. Forsyth, the Supreme Court held that denials of qualified immunity can be immediately appealed. Crucial to Mitchell’s holding was the Court’s conclusion that qualified immunity is an immunity from suit. The Court said that qualified immunity was not a mere defense to liability; it was instead an immunity from litigation itself. According to the Court, the costs, burdens, and uncertainties of litigation can distract government officials from their duties, inhibit their actions, and scare qualified applicants from pursuing public service. Qualified immunity gave these officials a right to be free from those costs, burdens, and uncertainties so long as the officials did not violate clearly established law. And if a case erroneously proceeded through pretrial and trial, that right to be free from the burdens of litigation would be irretrievably lost.

Mitchell also said that not all aspects of a district court’s decision denying immunity are up for review in an immediate appeal. Appellate courts need to address only the core qualified-immunity questions. First, do the facts (as pleaded or supported by the summary judgment record) make out a constitutional violation? And second, was the law was clearly established at the time of the violation?

Yet courts have steadily expanded the scope and availability of qualified-immunity appeals. One example involves the unique issues that arise in the context of Bivens claims.

B.   Appealing the Bivens Question

Although 42 U.S.C. § 1983 does not create a cause of action against federal officials, the Supreme Court recognized an implied constitutional cause of action in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, from which these claims get their name. But Bivens claims don’t exist for every constitutional violation by federal officials. The Supreme Court has recognized Bivens claims in only two other contexts: sex discrimination in federal employment, in violation of the Fifth Amendment’s due process clause; and deliberate indifference to a federal prisoner’s medical needs, in violation of the Eighth Amendment. The Court has held that no Bivens cause of action exists in a variety of other contexts.3See, e.g., Minneci v. Pollard, 565 U.S. 118, 120 (2012) (no Bivens claim against private prison employees); Correctional Services Corp. v. Malesko, 534 U.S. 61, 63 (2001) (no Bivens claim against private entity operating a halfway house for the federal government); FDIC v. Meyer, 510 U.S. 471, 486 (1994) (no Bivens claims against federal agencies); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (no Bivens claim for due process violations in the improper denial of Social Security disability benefits). So before a case can proceed against a federal official, courts must sometimes ask the Bivens question: does a cause of action exist for this alleged constitutional violation? Answering that question requires considering the alternative remedies an injured plaintiff might have as well as whether special factors counsel against recognizing an implied cause of action.4For more on Bivens and the Bivens question, see, e.g., James E. Pfander, Constitutional Torts and the War on Terror 21–24 (2017); James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz, The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 Stan. L. Rev. 561, 569–71 & 574–78 (2020).

Federal defendants in Bivens suits, like their state counterparts, can seek qualified immunity against damages claims. And when these defendants immediately appeal from the denial of immunity, they can raise an additional issue: does a Bivens action exist for the defendants’ alleged conduct? The Supreme Court held in Hartman v. Moore that appellate courts could determine the elements of a Bivens claim as part of a qualified-immunity appeal. The decision was light on explanation, saying only that the elements of a cause of action were “directly implicated by the defense of qualified immunity” and thus within the scope of review. And in Wilkie v. Robbins, the Supreme Court extended Hartman to hold that courts can also address whether a Bivens claim exists at all. Addressing appellate jurisdiction in a footnote, the Court said that the same reasoning used in Hartman applied in Wilkie: just as the court had jurisdiction to address a single element of a cause of action, it also had jurisdiction to decide whether to recognize the cause of action at all.

III. Wilkie Was Wrong, and Then It Got Worse

A.   The Original Criticisms of Wilkie

As Laurence Tribe and Stephen Vladeck have separately shown, Wilkie was wrong to include the existence of a Bivens action in the scope of interlocutory review.

For one thing, the Bivens question is not a necessary predicate to the qualified-immunity analysis. The qualified-immunity question (did a clearly established violation of federal law occur?) and the Bivens question (does a cause of action exist for this violation of federal law?) are distinct. It’s entirely possible for a federal official to violate an individual’s clearly established rights but for that individual to have no cause of action to sue for damages. To see why, one need only imagine that a state (not federal) official performed the alleged acts. If this imaginary state official’s conduct would violate clearly established federal law, then the federal official’s would, too. Nowhere in that analysis do you need to ask whether a cause of action exists. So answering the core qualified-immunity issues does not require addressing the Bivens question.

For another thing, interlocutory review of the Bivens question cannot be justified by the purposes that underlie qualified-immunity appeals. Recall that those appeals exist to protect government officials from the burdens of litigation when federal law is unclear. But when the law is clearly established, there’s no reason to shield officials from litigation. And the Bivens question has nothing to do with the clarity of federal law. Granted, it might be unclear whether a Bivens remedy exists for a particular violation. And the parties might go all the way through district court litigation only for the court of appeals to hold that no cause of action exists. But that’s a normal part of litigation; we normally don’t let parties immediately appeal when some uncertainty exists as to the cause of action. Interlocutory review of the Bivens question thus does not serve the supposed social interests that underlie qualified-immunity appeals.

B.   Making Wilkie Worse

Wilkie thus added difficulty, expense, and delay to qualified-immunity appeals for no good reason. The decision gave defendants a new argument to make in qualified-immunity appeals and a new reason to appeal from the denial of qualified immunity. This was all for no legitimate purpose. All these appeals do is short-circuit civil-rights actions when the district court erroneously (in the appellate court’s view) decided that a cause of action existed. That’s not a purpose that justifies immediate appellate review.

But for whatever reason, qualified-immunity appeals that involved the Bivens question were rare in the ten or so years after Wilkie. Between 2008 and June 19, 2017 (the date the Supreme Court decided Ziglar v. Abbasi, the importance of which we’ll see in a moment), the courts of appeals decided sixty-one qualified-immunity appeals involving Bivens claims.5To find qualified-immunity appeals in Bivens cases after Wilkie, I searched Westlaw’s U.S. Courts of Appeals Cases database for with the terms adv: bivens AND ((TI(defendant! /4 appellant!) AND “qualified! immun!”) OR (TI(plaintiff! /4 appellee!) AND “qualified! immun!”) OR ((CO(Third) OR CO(D.C.)) AND “qualified! immun!”)) & DA(aft 12/31/2007). The first two groups of terms in the parentheses—(TI(defendant! /4 appellant!) AND “qualified! immun!”) OR (TI(plaintiff! /4 appellee!) AND “qualified! immun!”)—were meant to capture cases in which the defendant was listed as the appealing party or the plaintiff was listed as the appellee. The third group of terms—((CO(Third) OR CO(D.C.)) AND “qualified! immun!”)—was necessary because the Third and D.C. Circuits do not have the traditional plaintiff or defendant designations in the title; they instead simply list the appellant or both the appellant and appellee. I then pruned the cases for false positives (not a qualified-immunity appeal, didn’t involve a Bivens claim, etc.). Of those, courts squarely addressed the Bivens question only ten times.6See Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016); Solida v. McKelvey, 820 F.3d 1090 (9th Cir. 2016); Gustafson v. Adkins, 803 F.3d 883 (7th Cir. 2015); Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015), reversed in part, vacated in part by Ziglar v. Abbasi, 137 S. Ct. 1843 (2017); De La Paz v. Coy, 786 F.3d 367 (5th Cir. 2015); Engel v. Buchan, 710 F.3d 698 (7th Cir. 2013); Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Davis v. Billington, 681 F.3d 377 (D.C. Cir. 2012); Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008). I included in this count Turkmen v. Hasty, which was reversed and vacated in Ziglar v. Abbasi. I excluded from this count the panel opinion in Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011), which was superseded by an en banc decision.

The remaining cases give short (or no) shrift to the matter. Most did not mention the propriety of a Bivens action. That was unsurprising when the Supreme Court had already held that a Bivens remedy exists, such as in cases of an allegedly unreasonable search under the Fourth Amendment or an alleged failure to provide medical treatment to a prisoner in violation of the Eighth Amendment. But others involved more novel claims that the Supreme Court had not squarely addressed, including claims for retaliation in violation of the First Amendment and even a claim for violating the Wiretap Act.

Then came Ziglar v. Abbasi and Hernandez v. Mesa. These cases emphasized the need to address the Bivens question anytime a claim arose in a “new context.” And this new-context inquiry has created grist for more—and more complicated—qualified-immunity appeals.

Ziglar involved claims by several people who were detained in federal custody after the terrorist attacks of September 11, 2001. The Court ultimately held that these plaintiffs had no Bivens action against the guards that abused them or the warden who allowed the abuse. It did so only after emphasizing the need to ask the Bivens question anytime a case arises in a “new context.” The Court described a new context both vaguely and broadly. A new context exists anytime a case is “meaningfully different” from one of the Supreme Court’s previous Bivens decisions. The Court then gave a nonexhaustive list of facts that could make a context meaningfully different, such as the rank of the government officials, the constitutional rights at stake, the risk of disruptive intrusion into other branches of government, and even special factors that previous cases had not considered.

The Court’s analysis of the claims against the warden illustrate how little is required for a context to be new. The plaintiffs claimed that the warden allowed the guards to abuse the plaintiffs, and the Court held that these claims arose in a new context. Granted, the claims against the warden had some similarities to the Court’s decision in Carlson v. Green, in which the Court allowed a claim for prisoner mistreatment. “Yet,” the Court concluded, “even a modest extension is still an extension.” The constitutional rights at issue were different (the Eighth Amendment in Carlson, the Fifth in Ziglar), the law governing the warden’s conduct was different, there were potentially other remedies available to the Ziglar plaintiffs that Carlson did not consider, and the intervening years had seen some Congressional action on prisoner suits. The Court admitted that these differences were “perhaps small, at least in practical terms.” But the new-context inquiry was nevertheless “easily satisfied.”

Hernandez doubled down on the suggestion that nearly any difference is sufficiently “meaningful.” The case involved a Border Patrol Agent’s fatal cross-border shooting of a Mexican child, with the child’s parents suing under the Fourth and Fifth Amendments. The Court again held that the case presented a new context that required asking the Bivens question. Granted, Bivens had itself involved claims under the Fourth and Fifth Amendments. But reliance on this similarity “rest[ed] on a basic misunderstanding of what [the Court]’s cases mean by a new context.” The Court thought that looking beyond the constitutional amendments at issue made it “glaringly obvious that [the] claims involve[d] a new context”:

Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City; Davis concerned alleged sex discrimination on Capitol Hill. There is a world of difference between those claims and petitioners’ cross-border shooting claims, where “the risk of disruptive intrusion by the Judiciary into the functioning of other branches” is significant.

Hernandez thus required a fresh Bivens inquiry. And that inquiry led the court to conclude that no Bivens action was available.

Ziglar and Hernandez are troubling for many reasons, including how high they’ve set the bar for recognizing Bivens actions. For purposes of qualified-immunity appeals, they give federal defendants a new argument (or at least give new life to an old argument). After Ziglar and Hernandez, it seems that the only non-new context would be someone named “Bivens” suing six Narcotics agents. So nearly all federal defendants now have a non-frivolous argument that the claims against them arise in a new context and require a Bivens inquiry. If the district court holds that a Bivens action exists, those defendants can then pursue those same arguments in their qualified-immunity appeals.

Ziglar and Hernandez accordingly might mean more qualified-immunity appeals; defendants that might not have taken an appeal to raise the Bivens issue before the decisions now have every reason to. More likely, they add another issue to the scope of appeals that defendants would have already taken. And that means more work, expense, and delay for plaintiffs suing federal officials. It’s too early to say for certain whether Ziglar and Hernandez will meaningfully increase the number of qualified-immunity appeals in which courts must address the Bivens question. But between Ziglar (decided June 19, 2017) and Hernandez (decided February 25, 2020), there have been eighteen qualified-immunity appeals involving Bivens claims. Of those eighteen, ten addressed the existence of a Bivens remedy—the same number of appeals that addressed that question in the ten or so years between Wilkie and Ziglar.7See Loumiet v. United States, 948 F.3d 376 (D.C. Cir. 2020); Johnson v. Burden, 781 F. App’x 833 (11th Cir. 2019); Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019); Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019); Fazaga v. Federal Bureau of Investigation, 916 F.3d 1202 (9th Cir. 2019); Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018); Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018); Liff v. Office of Inspector General, 881 F.3d 912 (D.C. Cir. 2018); Doe v. Hagenbeck, 870 F.3d 36 (2d Cir. 2017); Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017).

IV. The Expansion of Qualified-Immunity Appeals

The right to appeal from the denial of qualified immunity—standing alone—imposes a unique procedural cost on civil-rights litigation. The plaintiff’s lawyer must be adept at both trial and appellate litigation. The appeals can take months or years, and district court proceedings are regularly stayed while the appeal is pending. And defendants can use these appeals to wear out plaintiffs and impose unnecessary costs on them, perhaps in the hope that the plaintiffs will eventually give up.

But it’s not just the right to appeal that is a problem. Courts have expanded these appeals to include a variety of issues. In addition to the Bivens question, courts hearing a qualified-immunity appeal can address the plausibility of the pleadings and whether the summary-judgment record “blatantly contradicts” the facts that the district court took as true in denying immunity. Municipalities tag along to raise their own issues. And defendants can take two (or maybe even three) interlocutory appeals in a single action. The one seeming limit on the scope of qualified-immunity appeals—Johnson v. Jones’s prohibition on reviewing the genuineness of fact disputes—has been undermined by the just-mentioned blatant-contradiction inquiry, and defendants regularly ignore it.

None of these expansions is worth the difficulty, expense, and delay that it adds to qualified-immunity appeals. Some of them are downright useless. Should qualified immunity remain in its current or an altered form, the appellate procedures that go along with qualified immunity must change. This could mean narrowing the scope of the appeals to exclude everything but the core qualified-immunity questions. It could mean switching to discretionary appeals. Or it could mean doing away with qualified-immunity appeals entirely.

Like the substantive defense of qualified immunity, Congress or the Supreme Court could change the rules governing qualified-immunity appeals. But these appeals have an additional audience that the substantive defense does not: the Rules Committee. Congress authorized the Supreme Court to create rules governing appellate jurisdiction via the rulemaking process. Under 28 U.S.C. § 2072(c), the Court may prescribe rules defining when a district court decision is final for the purposes of 28 U.S.C. § 1291. And under 28 U.S.C. § 1292(e), the Court can proscribe rules that provide “for an appeal of an interlocutory decision to the courts of appeals.” The Rules Committee can accordingly reform the law governing interlocutory appeals from the denial of qualified immunity.

But the Rules Committee moves deliberately. Any change would take years. So the time to start thinking about what qualified-immunity appeals will look like should the defense stick around (or not look like, if we get rid of them entirely) is now.

V. Conclusion

Wilkie, Ziglar, and Hernandez all made it harder for plaintiffs to win a civil-rights suit. They also made litigating those suits more difficult. And the addition of the Bivens question to the scope of qualified-immunity appeals is only one of the ways in which courts have erected procedural hurdles in civil-rights litigation. The future of qualified immunity is in flux, and some wonder how long Bivens will remain good law. But should the future look anything like the present, a lot can be done to streamline qualified-immunity appeals. And perhaps the best audience for reform efforts is the Rules Committee.

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Bryan Lammon is a professor at the University of Toledo College of Law. He thanks participants in a breakout session at the Fourth Annual Civil Procedure Workshop. And special thanks, as always, to Nicole Porter.

Featured photo credit to Chad Davis.

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