In Maye v. City of New Haven, No. 23-459 (2d Cir. Dec. 26, 2023), The Second Circuit joins the Fifth Circuit in holding that there is no appellate jurisdiction over the denial of summary judgment on a qualified immunity defense that is denied for reasons extrinsic to the merits. The First and Eleventh Circuits have held to the contrary.
“Proceeding pro se, [plaintiff] Maye brought suit against the City under 42 U.S.C. § 1983, alleging that in 2020 City police officers illegally evicted him from the building that he leased for his gym business, Get’Em Boy Boxing LLC. In its answer, the City asserted the affirmative defense of qualified immunity. The district court set a deadline of August 30, 2022 for dispositive motions, but the City did not file a motion for summary judgment by that date. Nor did the City make any mention of qualified immunity in its August 18, 2022 memorandum in opposition to Maye’s motion for summary judgment.”
The case was originally assigned to a magistrate judge. When the city finally raised qualified immunity, in a motion to extend the (now-expired) deadline to file, the magistrate denied the relief on the grounds that the motion was untimely and defendant failed to identify “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Discovering a flaw in the magistrate’s jurisdiction (some defendants had never consented to the referral), the City filed its qualified-immunity summary judgment motion before the district court, which also rejected it based on untimeliness.
The Second Circuit dismisses the appeal. An appeal of an interlocutory ruling denying qualified immunity proceeds through the collateral order doctrine to the extent that it “turns on an issue of law,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), thus treated as a “final decision” under 28 U.S.C. § 1291. But here, the court holds that “The district court’s denial of the City’s motion asserting qualified immunity did not turn on an issue of law. Indeed, it did not turn on the merits of the motion at all. Instead, the district court denied the motion because it was filed more than six months after the August 30, 2022 deadline for dispositive motions, a deadline set before the case was referred to the magistrate judge for adjudication.”
Though the result was that the City was (potentially) denied the immunity from trial afforded by law, the panel writes that it “has only itself to blame for its predicament. Because qualified immunity, unlike subject matter jurisdiction, is an affirmative defense that can be waived, we decline to extend the collateral order doctrine to allow immediate appeal from an order denying as untimely a motion asserting that defense.”
“We are not the first Circuit to confront this issue. The Fifth Circuit has held that it lacked jurisdiction under the collateral order doctrine to hear an interlocutory appeal from an order denying as untimely a motion asserting qualified immunity. See Edwards v. Cass Cnty., Tex., 919 F.2d 273, 275–76 (5th Cir. 1990).” (The panel also cites a non-precedential Tenth Circuit opinion.) “And while the First and the Eleventh Circuits have extended the collateral order doctrine to allow interlocutory appeals from such orders . . . , we agree with the Fifth Circuit that such an expansion is unwarranted, since it would essentially grant defendants the right to assert a qualified immunity defense at any time, regardless of the district court’s prior scheduling orders, as though the affirmative defense were the equivalent of a challenge to subject matter jurisdiction.”
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