§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`15A Fed. Prac. & Proc. Juris. § 3914.10 (2d ed.)
`
`Federal Practice & Procedure | April 2017 Update
`Jurisdiction And Related Matters
`The Late Charles Alan Wright a298 , Arthur R. Miller a299 , Edward H. Cooper a300 , Vikram David Amar a301 , Richard D.
`Freer a302 , Helen Hershkoff a303 , Joan E. Steinman a304 , Catherine T. Struve a305
`
`Jurisdiction and Related Matters
`Chapter 9. Jurisdiction Of The Courts Of Appeals
`Edward H. Cooper a435
`
`B. Final Judgment Rule
`
`§ 3914.10 Finality—Orders Prior to Trial—Immunity Appeals
`
`Link to Monthly Supplemental Service
`Appeals from pretrial orders refusing to terminate proceedings on the basis of a claimed immunity have generated
`significant complexities and confusions. These complexities and confusions surround a core that remains clear, at least
`for the time being. Public officials are entitled to appeal denial of motions to dismiss or for summary judgment that rest
`on an asserted official immunity, at least to the extent that pure questions of law are raised. How far appeal is permitted
`as the dispute becomes increasingly factual is less clear. The scope of review also is disputed, both as to matters of fact
`bearing on the immunity defense and as to questions that do not go directly to immunity but are related to it. Several
`other matters involving the right to appeal are likewise uncertain, various incidents of the right remain unresolved, and
`trouble has been encountered in identifying the nature of other assertions of “immunity” that might be treated in the
`same way as official immunity. All of these difficulties arise from a conflict between the desire to bolster the benefits of
`immunity to include protection against the burdens of pretrial proceedings and trial and the desire to meet the ordinary
`needs of an appeals system built around the final judgment rule. The resolution of these difficulties may change with
`time, and eventually may lead to reconsideration of the basic right to appeal.
`
`The story of immunity appeals can begin with Nixon v. Fitzgerald. 1 Suit was brought by a management analyst for
`the Air Force, claiming damages for termination of his employment. Former President Nixon asserted a defense of
`absolute immunity by motion for summary judgment, which was denied. The Supreme Court held that the collateral
`order doctrine justified appeal. Reliance was placed on two decisions that allowed criminal defendants to appeal denial
`of pretrial motions to dismiss on the basis of double jeopardy 2 or the protection conferred on a member of Congress
`by the Speech or Debate Clause. 3 In addition, the Court relied on decisions of the Court of Appeals for the District of
`Columbia Circuit allowing civil defendants to appeal pretrial denials of absolute immunity defenses. 4 Perhaps because
`the Nixon case came from the District of Columbia Circuit, the Court then focused entirely on the question whether the
`appeal raised a serious and unsettled question of law, believing that the appeal had been dismissed for want of such a
`question. The Court concluded that the case did present a serious and unsettled “and therefore appealable question.” 5
`
`In the wake of the Nixon decision, a number of cases have allowed appeals from orders denying motions to dismiss or
`for summary judgment based on absolute immunity, whether asserted by public or private defendants. 6 Appeal also
`has been permitted from an order granting summary judgment for the plaintiff, finally rejecting a defense of absolute
`immunity. 7 The Supreme Court has summarized the Nixon decision in terms that might suggest that there is a right to
`appeal without regard to the niceties that have grown up around qualified immunity appeals, 8 and it has been suggested
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`1
`
`MYLAN - EXHIBIT 1169
`Mylan Pharmaceuticals Inc. et al. v. Allergan, Inc.
`IPR2016-01127, -01128, -01129, -01130, -01131, -01132
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`Whether or not courts find a way to limit a defendant to one immunity appeal, the appeal must be taken within the
`time allowed by the Appellate Rules following entry of the order appealed. 65 If no appeal is taken from the first order
`that might be appealed, the same immunity issue may be raised on appeal from a later order, and in any event is subject
`to review on appeal from the final judgment. 66 At the same time, once trial has been had the availability of official
`immunity should be determined by the trial record, not the pleadings nor the summary judgment record. 66.50 Failure to
`take an available collateral order appeal ordinarily does not defeat the right to review, and surely it should be possible
`for the defendant to conclude that the relative costs and prospects of success on immediate appeal are not as attractive as
`the costs and prospects of success at trial. At the same time, once trial has been had the availability of official immunity
`should be determined by the trial record, not the pleadings nor the summary judgment record. The allocation of issues
`between judge and jury on a post-trial appeal remains a matter of some genuine confusion. 66.75 Cross-appeals should
`be allowed as to matters closely related to the immunity appeal, although not otherwise appealable, so long as there is
`no significant increase in the delay and disruption caused by the appeal and the matters presented by cross-appeal are
`ripe for decision. 67
`
`Since an immunity appeal is allowed in order to protect against the burdens of trial, ordinarily the district court should
`not proceed to trial, nor even impose substantial pretrial burdens, pending appeal. “It makes no sense for trial to go
`forward while the court of appeals cogitates on whether there should be one.” 68 Although this rule departs from the
`ordinary rule that the district court can continue toward trial pending a collateral order appeal, 69 immunity appeals
`seldom involve matters collateral to the merits and depend on the special purpose to protect officials against the burdens
`of trial rather than ordinary collateral order doctrine. In keeping with ordinary appeal rules, moreover, the district court
`may reconsider the order involved in the appeal but lacks power to vacate the order absent permission from the court of
`appeals. 70 One carefully reasoned opinion has even concluded that the district court cannot permit amendment of the
`complaint while an immunity appeal from denial of a motion to dismiss remains pending. 70.5
`
`Quite a different question is presented by the ruling that the district court cannot grant summary judgment for the
`defendant on a motion made by the defendant during the pendency of the defendant's appeal from denial of an official-
`immunity motion to dismiss. The court recognized that this rule does not fit comfortably with the purpose of the
`collateral-order reasoning that supports the appeal. If the defendant asks that the district court continue with the action
`pending appeal, hoping for a favorable determination that might finally resolve the entire dispute, there is no apparent
`reason to “protect” the defendant by ruling that the appeal ousts district-court jurisdiction. Nonetheless, the court
`relied on the theory that an appeal does not simply weigh against continuing district-court proceedings as a matter of
`efficiency and protection for the appellant. Instead, “[t]he filing of the notice of appeal was an event of jurisdictional
`significance, which divested the district court from granting further relief concerning the issues on appeal.” 70.6 In some
`ways this ruling seems unduly formalistic. The court recognized the advantages of allowing district-court consideration
`by noting that the defendants could have asked it to remand for consideration of their motion. That opportunity goes
`part way toward efficient integration of proceedings in the two courts. But it would be better to adopt a more cooperative
`procedure. The district court should have authority, if it wishes, to consider the defendant-appellant's motion to the point
`of either denying it or of stating that it would welcome a remand to enable it either to grant the motion or to consider it
`fully. This procedure would track the approach commonly taken when a motion is made to vacate a judgment pending
`on appeal, and for obviously good reason. It will be expressly authorized if the Supreme Court adopts proposed new
`Civil Rule 62.1, published for comment in August 2007. In the interim, a district court should feel free to adopt the same
`procedure by analogy to the procedure on motion to vacate.
`
`On the other hand, there is a risk that the appeal may be frivolous, or reflect manipulative use of the asserted immunity
`defense for purposes of delay. In announcing the general rule that the district court should not proceed to trial pending
`appeal, the Court of Appeals for the Seventh Circuit has added the qualification that the district court may proceed
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`18
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`to trial if it certifies that the appeal is frivolous or that the defendant has surrendered the right to pretrial appeal by
`“play[ing] games with the district court's schedule.” 71
`
`Complex questions are presented when one defendant takes an official-immunity appeal but other defendants do not and
`often cannot. There may be good reasons to continue proceedings as to the defendants not involved with the appeal. But
`the continued proceedings may impose significant burdens on the defendant who has appealed. It may prove possible
`to allow continued proceedings, weighing the importance of the reasons for pressing ahead in the trial court against the
`burdens imposed on the appealing defendant. Continued proceedings may be most attractive when the burdens approach
`those that may be imposed on a nonparty—a good example is discovery, even if the means chosen are available only
`against a party. 71.6
`
`The principle recognized in the cases dealing with absolute and qualified official immunity could easily be extended
`in many directions. To support collateral-order appeal, an immunity claim must be more than colorable—it must be
`substantial. 71.7 With respect to public officials themselves, the theory that immunity is intended to protect against the
`burdens of trial preparation as well as the burdens of trial might be expanded to justify discovery appeals. This expansion
`is not likely to occur. Courts are understandably wary of opening the doors to frequent appeals from discovery orders. 72
`Public officials who are not parties to the litigation likely will have to seek other paths of appeal, even if there is a plausible
`claim of immunity from the very discovery ordered by the district court. 73 Even public officials who are parties and
`who can invoke immunity against liability should not be able to justify appeal from discovery orders by arguing that the
`discovery itself imposes a burden that violates the policies of official immunity. 74 Appeal from orders dealing directly
`with the immunity defense ordinarily is sufficient. In some circumstances, however, it may be proper to allow appeal
`if the defendant can show that it is possible to secure meaningful reductions in the burdens of discovery by limiting
`discovery to specific issues that bear on the immunity defense. 75
`
`The Federal Employees Liability Reform and Tort Compensation Act of 1988, “commonly known as the Westfall Act,”
`grants absolute immunity to a federal employee against common-law tort claims arising from acts within the scope of
`federal office or employment. One feature of the Act provides that if the Attorney General certifies that the employee
`was acting within the scope of office or employment, the United States is substituted as defendant. The Supreme Court
`has ruled, in line with the unanimous view of the courts of appeals, that the certification and substitution is “designed to
`immunize covered federal employees not simply from liability, but from suit.” An order rejecting the Attorney General's
`certification is appealable as a collateral order. 75.5 The Court has ruled, however, that appeal cannot be taken from
`denial of a motion to dismiss an action against individual government employees that invokes the statutory bar arising
`from dismissal of an action against the United States under the Federal Tort Claims Act for the same acts. 75.6
`
`Extension of immunity appeal theory beyond public officials claiming absolute or qualified immunity is a chancy process.
`Part of the problem stems from the choice to refer to the circumstances that justify immediate appeal as involving a right
`not to stand trial. Many interests can cogently be described as establishing a right not to stand trial. As noted repeatedly
`in earlier sections, immunity from service of process or a lack of personal jurisdiction would be characterized by many
`observers as establishing a right not to be tried. Yet in Van Cauwenberghe v. Biard 76 the Supreme Court ruled that the
`principle of the immunity appeal cases does not apply. It assumed that the defendant, who had been served with process
`in a civil action while in the United States because of extradition from Switzerland for a criminal prosecution, had stated
`a plausible claim of immunity under the extradition treaty and under the “principle of specialty.” It concluded, however,
`that immunity from service of process serves the same purpose as the rules that limit personal jurisdiction. These rules
`are designed to protect against entry of a binding judgment, not the burdens of submitting to trial. Appeal from a final
`judgment can protect against an inappropriate exercise of power. The result seems sound; the rule that appeal cannot
`be taken from denial of a motion to dismiss for want of personal jurisdiction has been long established, has served well,
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`19
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`69
`
`70
`
`70.5
`
`70.6
`
`71
`
`Penalty dismissal
`The rule that the district court lacks jurisdiction pending appeal from denial of an official
`immunity summary judgment motion extends to defeat its power to dismiss the plaintiffs' claims
`for failure to file a timely joint pretrial order. The dismissal was void, and must be set aside on
`motion under Civil Rule 60(b)(4) even though the better remedy would have been to appeal
`the dismissal. Williams v. Brooks, C.A.5th, 1993, 996 F.2d 728, on remand D.C.Tex.1994, 862
`F.Supp. 151, affirmed C.A.5th, 1995, 71 F.3d 502.
`Ordinary rule
`The conclusion that ordinarily trial court proceedings can continue pending a collateral order
`appeal is explored in § 3911.
`Cannot vacate
`An order denying a motion to dismiss on the basis of absolute judicial immunity was properly
`appealed. Because the appeal was proper, the district court lacked jurisdiction to reconsider
`the order and grant dismissal. Venen v. Sweet, C.A.3d, 1985, 758 F.2d 117.
`No amendment
`While appeal from denial of the motion to dismiss was pending, the district court twice granted
`leave to amend the complaint. The amended complaints “are nullities.” The purpose of an
`immunity appeal is to protect the defendant against the burdens of pretrial proceedings as
`well as the burdens of trial. To permit amendment while the appeal is pending could moot the
`appeal, forcing remand for further proceedings. “[U]nlike certain other interlocutory appeals,
`a[n immunity] appeal is not the sort of discrete and ancillary matter that can be decided in
`isolation from the remainder of the case against the public official in his or her individual
`capacity.” Amendment of the complaint imposes burdens on the defendant, such as filing an
`answer or motion to dismiss, and perhaps appeal from an unfavorable disposition. Decision
`of the appeal on the basis of the complaint as it stood at the time of the ruling on the motion
`to dismiss can shape the course of any further proceedings on remand. Successive appeals,
`moreover, are not common—the incentives for the defendant are to defer appeal until there
`is little risk that reason will be shown to permit amending the complaint. And if the appeal is
`merely colorable, trial-court proceedings can continue. May v. Sheahan, C.A.7th, 2000, 226
`F.3d 876, 879–881.
`Defendant's motion pending appeal
`Walker v. City of Orem, C.A.10th, 2006, 451 F.3d 1139, 1145–1147.
`Frivolous appeal
`Apostol v. Gallion, note 68 above. The court drew directly from the procedures adopted for
`frivolous double jeopardy appeals. See § 3918.5.
`The district court certified the immunity appeal as frivolous and the court of appeals denied the
`defendant's motion for a stay. Trial led to a verdict for the plaintiff. The appeal from denial of
`summary judgment was dismissed as moot. The purpose of allowing an interlocutory immunity
`appeal is to protect against the burdens of trial. The time to do that had passed. For that
`matter, the only issue argued in the defendant's opening brief on appeal was that there was no
`constitutional violation, an issue now decided by the verdict. "[W]e will not entertain a pre-
`judgment qualified immunity appeal asking us to decide the same question a jury has already
`decided." Review of the jury verdict could be had by appealing after final judgment is entered.
`Padgett v. Wright, 587 F.3d 983, 986 (9th Cir. 2009).
`The district court denied summary judgment on November 26 and set trial for December 2.
`Counsel for the defendants failed to appear on December 2; the district court rejected the
`proffered excuse, imposed sanctions, and rescheduled the trial for December 3. At 4:48 p.m.
`on December 2 the defendants filed a notice of appeal and asked the district court to stay
`further proceedings; at some time on December 2 they also asked the court of appeals for a
`stay. The court of appeals denied a stay. Trial began on December 3. The court of appeals
`denied the defendants' motion to reconsider the stay on December 6, requesting the district
`court to make an express ruling on the stay motion. On December 6, after closing arguments
`and jury instructions, the district court denied the stay, stating that there was no basis for
`the appeal and certifying that the appeal was frivolous. The attempted immunity appeal did
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`217
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`not oust the district court's jurisdiction. Several circuits have followed the Seventh Circuit's
`lead in adopting a procedure that allows the district court to proceed to trial if it certifies that
`an immunity appeal is frivolous. Those courts “have held or implied that the district court's
`act of filing the certification of frivolousness is an event of jurisdictional significance.” But it
`was not necessary to decide whether to adopt the certification procedure, whatever its merits
`may be. The case fell into the independent rule that a patently meritless appeal does not divest
`district-court jurisdiction. Immunity was denied on the ground that there were genuine issues of
`fact whether the defendant mayor fired the plaintiff for political reasons. The underlying First
`Amendment theory clearly depends on motivation, a question of fact. The asserted legal basis
`for appeal was clearly foreclosed. The sequence of events, moreover, betrayed the frivolousness
`of the appeal. “The timing and haste of the … notice of appeal reveals its intended purpose
`—to cloak a request for postponement in” immunity appeal raiments. Rivera-Torres v. Ortiz
`Velez, C.A.1st, 2003, 341 F.3d 86, 93–98.
`In Williams v. Mehra, C.A.6th, 1998, 135 F.3d 1105, 1110–1111, rehearing granted, opinion
`vacated C.A. 6th, 1998, 144 F.3d 428, the court noted that after denying official-immunity
`summary judgment, the district court “denied certification of the appeal as frivolous,” and the
`court of appeals “granted that appeal ….”
`The order certifying an official immunity appeal as frivolous and refusing to stay further trial-
`court proceedings is not itself appealable. Appellants should seek a stay from the district court,
`and then a discretionary stay from the court of appeals. This course was not followed. The
`damage was limited, however, because the trial court went on to grant summary judgment
`for the plaintiffs on a central issue and then withdrew its certification as frivolous. Marks v.
`Clarke, C.A.9th, 1996, 102 F.3d 1012, 1017, certiorari denied 118 S.Ct. 264, 522 U.S. 907, 139
`L.Ed.2d 190.
`Chief Judge Posner explored the procedures incident to frivolous immunity appeals in Chan
`v. Wodnicki, C.A.7th, 1995, 67 F.3d 137. The defendant police official appealed denial of an
`official-immunity motion for summary judgment. The district court certified the appeal as
`frivolous and the court of appeals denied a motion to stay the trial. The defendant was held
`liable. While postjudgment motions remained pending, the official asked to suspend briefing of
`the immunity appeal. The court responded by dismissing the appeal. It began with the premise
`that “[a] frivolous appeal is a nullity …; it does not engage the jurisdiction of the court of
`appeals …; and this is as true of an appeal from a denial of immunity as of any other appeal.”
`The court of appeals order refusing to stay trial, however, did not represent a determination
`that the appeal was frivolous; it only exercised discretion by refusing to delay trial in a case
`that had endured for four years and was but four days away from trial. The appeal, however,
`had become moot. The purpose of the pretrial appeal is to protect against the burden of trial;
`that possibility had vanished. The purpose of immunity to protect against liability remained,
`but it could be resolved on appeal from the judgment that might be entered after disposition
`of the postjudgment motions.
`A tantalizing order is reported in Dickerson v. McClellan, C.A.6th, 1994, 37 F.3d 251. After the
`defendants appealed denial of their official immunity defense, the district court certified that
`the appeal was frivolous and directed that the notice of appeal be dismissed. The reported order
`ruled that the attempt to dismiss the notice of appeal was beyond the district court's power, and
`that the appeal would continue on the court of appeals docket. It also noted that the court had
`disposed separately of the motions to reverse the determination that the appeal was frivolous
`and to supplement the appellate record with evidence produced at trial.
`The magistrate judge certified that the appeal from his order denying dismissal on official
`immunity grounds was frivolous and proceeded to trial. The court of appeals denied the
`defendants' motion to stay the trial. On appeal from judgment against the defendants after
`trial, the court of appeals refused to set aside the judgment because it was entered pending
`appeal. The power to certify the frivolity of an immunity appeal should be used with restraint.
`The court of appeals could not confidently pronounce that the appeal was frivolous. But the
`determination should be made in the first instance by the district court. In light of the court of
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`218
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`appeals' own refusal to stay the trial, “we reject the … argument that the filing of the notice of
`appeal divested the district court of jurisdiction over the qualified immunity issue.” McMath
`v. City of Gary, C.A.7th, 1992, 976 F.2d 1026, 1030–1031.
`Ordinarily an appeal from denial of a motion for summary judgment based on qualified official
`immunity divests the district court of jurisdiction to proceed to trial. The risk of disrupting
`trial court proceedings, however, justifies adoption in this context of the “dual jurisdiction”
`rule used for double jeopardy appeals. The district court can proceed to trial if it certifies in
`writing that the claim of immunity is frivolous or has been waived. The court of appeals retains
`discretionary power to stay proceedings following such a certification. Chuman v. Wright,
`C.A.9th, 1992, 960 F.2d 104, 105 & n. 1.
`The role of the trial court in identifying deliberately dilatory resort to official immunity appeal
`was stressed in Yates v. City of Cleveland, C.A.6th, 1991, 941 F.2d 444, 448–449. Nearly five
`years after suit was filed and only two weeks before trial was scheduled, the defendant moved
`for summary judgment. More than nine months later the motion was denied; the appeal was
`decided almost seven years after suit was filed. At the close of the opinion the court noted the
`risk that an official immunity defense may be raised by means that seek to manipulate and
`delay the trial date. It also found considerable support in the record for concluding that the
`defendant had employed the appeal “in a dilatory fashion.” It declined to dismiss the appeal on
`waiver grounds, however, reiterating that the trial court has discretion to avoid such problems
`by setting a cut-off date for motions for summary judgment. It also noted Judge Easterbrook's
`suggestion that a trial court may certify an appeal as frivolous and commence trial pending
`appeal. Judge Joiner, concurring, “would hold that the failure to raise the question of qualified
`immunity … was clearly calculated to delay the trial and therefore waived the right to appeal.”
`941 F.2d at 450.
`Court of appeals jurisdiction
`Although the district court had certified the official immunity appeal by one defendant as
`frivolous, this action did not affect the jurisdiction of the court of appeals. Both the district
`court and the court of appeals can proceed. Langley v. Adams Cty., C.A.10th, 1993, 987 F.2d
`1473, 1477.
`Appeal Sanctions
`The burden on a public employee suing on a claim of unconstitutional retaliation "Is
`significantly increased when, as here, the defendant takes a clearly unwarranted appeal of an
`interlocutory denial of qualified immunity. … [C]avalierly taking such an appeal smacks of
`economic duress. Indeed, this is at least the second such case this year in which the office of the
`Attorney General of Texas has improvidently brought and doggedly prosecuted such an appeal
`…. We trust that counsel … will henceforth carefully heed the case law … and be chary to
`take appeals of interlocutory orders denying qualified immunity on grounds of the existence of
`genuine factual disputes, lest they incur penalties, sanctions, damages for e.g., frivolous appeals,
`or worse." Charles v. Grief, 507 F.3d 342, 346 (5th Cir. 2007).
`The court was inclined to agree with the observation of the district court that an attempt to
`take an official-immunity appeal would be frivolous. Having dismissed the appeal for lack of
`jurisdiction, the court directed the defendant sheriff to show cause why sanctions should not
`be imposed under Appellate Rule 38. Ruffino v. Sheahan, C.A.7th, 2000, 218 F.3d 697, 701.
`District-court sanctions
`After entering final judgment, the district court imposed sanctions on the attorneys for the
`defendants for taking an earlier dilatory and meritless appeal from denial of an official-
`immunity motion for summary judgment. The sanction order was reversed. “[A] district court
`may not sanction based on its determination that an appeal is frivolous.” Sanctions must be
`determined by the court of appeals—the court if appeals is in a better position to determine
`whether an appeal lacks merit, and there is a strong policy favoring these interlocutory appeals.
`In some circumstances a district court might properly impose sanctions for dilatory conduct in
`the district court, but nothing in the circumstances of this case would support sanctions on this
`theory. Although the appeal may have affected the district court's ability to manage its docket,
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`219
`
`

`

`§ 3914.10Finality—Orders Prior to Trial—Immunity Appeals, 15A Fed. Prac. & Proc....
`
`71.6
`
`71.7
`
`72
`
`73
`
`other means of protection are available—including setting an earlier cut-off for summary-
`judgment motions. Conner v. Travis Cty., C.A.5th, 2000, 209 F.3d 794, 798–802 & n. 5.
`Other defendant proceedings
`An illustration is provided by Alice L. v. Dusek, 492 F.3d 563 (5th Cir. 2007). An individual
`defendant appealed denial of official immunity. The plaintiff continued discovery on a Title IX
`claim against another defendant, a school district that could not claim official immunity. The
`Title IX claim could not be asserted against the individual defendant. The district court refused
`to stay discovery on the Title IX claim, including interrogatories and requests to produce
`documents addressed to the individual defendant. The court of appeals denied a motion to
`stay discovery pending appeal. It invoked the general rule that an appeal ousts district-court
`jurisdiction only as to the matters involved in the appeal. "How broadly a court defines the
`aspects of the case on appeal depends on the nature of the appeal." The § 1983 claim against
`the individual defendant was legally distinct from the Title IX claim against the school district.
`The individual defendant could not claim immunity against the Title IX claim because the Title
`IX claim could not be made against her. The discovery thus did not implicate her immunity
`defense. (As a nonparty the individual defendant would have been equally subject to document
`discovery, albeit under Civil Rule 45 rather than Rule 34, and could have been deposed. The
`difference between the burdens imposed by interrogatory discovery and by deposition will
`depend on the circumstances of each case, but in most cases it is not likely to be so great as
`to defeat discovery pending appeal. The discovery would be permissible even if the individual
`defendant had won dismissal on immunity grounds in the district court.)
`Substantial claim
`Houston Community Hosp. v. Blue Cross and Blue Shield of Texas, Inc., 481 F.3d 265, 268-269
`(5th Cir. 2007). The defendant, a company administering health insurance benefits under the
`Federal Employees Health Benefits Act, failed to state a substantial claim of "implied conflict
`preemption" official immunity from state tort claims for refusing to pay the plaintiff hospital
`the benefits it had represented to be available for treating three different patients. The appeal
`from denial of summary judgment on this theory was dismissed.
`Discovery appeals
`See §§ 3914.23 to 3914.26.
`Discovery immunity
`An Indian Tribe, not a party to the underlying litigation, could rely on collateral-order doctrine
`to appeal an order refusing to quash a discovery subpoena duces tecum. The Tribe asserted—
`successfully—that the proceedings to enforce the subpoena were a "suit" and that it enjoyed
`tribal immunity. Assuming that immunity defeated the court's jurisdiction, "to deny the Tribe
`the opportunity to appeal and thereby vest the district court with jurisdiction over the Tribe by
`estoppel where no jurisdiction previously existed would be absurd." Bonnet v. Harvest (U.S.)
`Holdings, Inc., 741 F.3d 1155, 1157-1159 (10th Cir. 2014).
`Appeal could not be taken from an order denying a motion to terminate the deposition of the
`former president of the Philippines. The argument that the deponent was immune from the
`obligation to submit to discovery was not persuasive. The cases permitting appeal to protect
`a claim of immunity from trial should not be extended to a claim of non-party testimonial
`immunity. If this appeal were allowed, there would be no obvious basis for denying appeal upon
`rejection of claims of self-incrimination or the attorney-client privilege. Estate of Domingo v.
`Republic of Philippines, C.A.9th, 1987, 808 F.2d 1349, 1351–1352.
`Compare
`Qualified immunity protects government officials from the costs of discovery as well as the
`costs of trial. Although summary judgment had been denied without prejudice so that discovery
`could be had, discovery had not been limited to resolution of the qualified immunity issue.
`Appeal was proper. Lewis v. City of Ft. Collins, C.A.10th, 1990, 903 F.2d 752, 754.
`Stay pending appeal
`The principle that precludes trial pending appeal from denial of an immunity motion does
`not rest on the formal division of jurisdiction between trial and appellate courts, for both
`courts may exercise authority pending an interlocutory appeal. Instead, it derives from the fact
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
`
`220
`
`