Commentary: Allowing appeals by winners

Last week’s decision in Camreta v. Greene raises several issues of considerable significance for future constitutional litigation.  The case, brought under 42 U.S.C. § 1983, involved a claim that state employees violated the Fourth Amendment by interviewing a nine-year-old girl at her elementary school about allegations that her father had sexually abused her.  The Ninth Circuit agreed with the plaintiffs that the government officials had violated the Constitution by failing to obtain a warrant (or parental consent) to conduct the interview, but it then held that the state employees were entitled to qualified immunity because the constitutional right was not clearly established.  (Jennifer Clark summarized the opinion last week for the blog.) 

The immediate issue raised by Camreta is whether the Court may review a lower court’s constitutional ruling even when the government officials seeking review prevailed on qualified immunity grounds:  technically, the officials (as in this case) are winners, and normally a prevailing party cannot appeal even if it is unhappy with an aspect of the decision.  Put another way, courts have traditionally held that the qualified immunity victory insulates the ruling on the constitutional merits from review.

In Camreta, however, a five-Justice majority (Justice Kagan, joined by the Chief Justice and Justices Scalia, Ginsburg, and Alito) held that government officials may, in fact, seek review under such circumstances.  The opinion thus put to rest a question that has vexed the Court for some time.  In Bunting v. Mellen (2004), for example, Justice Scalia dissented from the denial of certiorari, stating: “[T]he general rule [against appeals by winners] should not apply where a favorable judgment on qualified-immunity grounds would deprive a party of an opportunity to appeal the unfavorable (and often more significant) constitutional determination.”  If nothing else, Camreta resolves this question as Justice Scalia would have in Bunting, holding that the Court does have the authority to review constitutional determinations regardless of the outcome on qualified immunity.

But Camreta also raises much broader questions about the proper function of qualified immunity as a mechanism for the articulation of constitutional law.  The appealability question that Camreta addresses arises as a result of the Court’s qualified immunity doctrine itself.  Over the past three decades, the Court has experimented with various approaches to addressing the merits of constitutional questions in qualified immunity cases.  The primary argument in favor of deviating from the usual principle of constitutional avoidance is that merits decisions are necessary to facilitate the development of the law.  In Saucier v. Katz, decided in 2001, the Court went so far as to hold that lower courts must decide whether a constitutional violation occurred before determining whether the law was clearly established, such that the government officer was entitled to qualified immunity.  Just eight years later, however, the Court reversed course in Pearson v. Callahan, holding that the constitutional-merits-first approach was permitted but not mandatory.

The majority opinion in Camreta reiterated the Court’s approval of merits-first adjudication in qualified immunity proceedings.  In so doing, it stressed that qualified immunity serves as an important vehicle for constitutional law articulation.   Writing for the majority, Justice Kagan emphasized that “the two-step sequence [of] defining constitutional rights and only then conferring immunity . . . is sometimes beneficial to clarify the legal standards governing public officials”; by contrast, adhering to the “regular policy of [constitutional] avoidance . . . threatens to leave standards of official conduct permanently in limbo.”

But Camreta reveals that the majority’s view of the value of constitutional articulation is not as secure as three decades’ worth of precedent would suggest.  Although Justice Scalia joined the majority opinion, pronouncing it an accurate statement of the Court’s qualified immunity precedents, he also for the first time stated explicitly that he would be willing to consider revisiting the merits-first approach.  In an “appropriate case,” he noted in his concurring opinion, he would consider “end[ing] the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity.”  And in his dissent, Justice Kennedy – joined by Justice Thomas – similarly criticized the practice of granting lower courts “special permission” to reach the merits in qualified immunity cases.  Justice Kennedy’s current disapproval of the merits-first process is particularly ironic given that only ten years ago he authored Saucier v. Katz, in which the Court held that the merits-first inquiry was not only permissible, but mandatory.  Because there is no indication thus far that a majority of the Justices share this view, the merits-first approach remains viable – for now.  Still, the views expressed by Justices Scalia, Kennedy, and Thomas may prompt litigants to take up Justice Scalia’s invitation to present an “appropriate case” for reconsideration.

In his dissent, Justice Kennedy made two other primary arguments.  First, the majority’s rule regarding the appealability of merits rulings by prevailing parties yields arbitrary results.  Justice Kennedy pointed out that the Court would not be able to review a merits determination if the defendant (like James Alford, one of the petitioners in the consolidated cases here) was no longer a government employee, or if the government official is being sued for taking “extraordinary action” in unusual circumstances that are unlikely to recur.  However, this concern seems somewhat misplaced, given that defendants’ circumstances may change (and they may thus decline to pursue an appeal) in any litigation, leaving the articulated legal principles in place and binding other parties, including the government, in future litigation.

Justice Kennedy also contended that, by allowing appeals of merits decisions by government officers who have prevailed on qualified immunity, the majority converts dictum into judgment.  In other words, the decision on the constitutional merits – although permitted under current qualified immunity precedents as a means of guiding future courts – is unnecessary to the result and therefore dictum.  Allowing an appeal of unfavorable dictum thus transforms that dictum into a judgment – a result that Justice Kennedy characterized as tantamount to a declaratory judgment or an injunction.  The majority, for its part, simply disagreed about both the nature of the constitutional pronouncement and the effect of an appeal.  It countered that because “a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior,” it is “[n]o mere dictum.”  For the majority, then, the fact that the constitutional rule is binding in the future is sufficient to allow appeal of the ruling.  That appeal does not necessarily render that ruling a “judgment”; it simply means that the party disadvantaged by that ruling may appeal.

Ultimately, however, the result in Camreta did not hinge either on the validity of merits-first adjudication or on the question of whether the government officials who ultimately prevailed could appeal.  Rather, the Court disposed of the case on mootness grounds, explaining that the girl on whose behalf the suit was originally brought had moved to a different state and was about to turn eighteen.  As a result, she faced no risk of being subjected to the allegedly unconstitutional interview practice in the future.  The Court then vacated the Ninth Circuit’s ruling on the constitutional merits.  Although the respondent had argued that vacatur ran counter to the Court’s precedents encouraging lower courts to enunciate constitutional principles, the Court nonetheless held that vacatur was appropriate so that the Ninth Circuit’s merits ruling – although unreviewable because it was moot – would not prospectively bind the parties. 

The Court did, however, leave intact the Ninth Circuit’s holding that the government officials were entitled to qualified immunity.  While this severance of the two parts of the holding initially seems surprising, the outcome flows logically from the respondent’s decision not to cross-petition for review of the qualified immunity decision.  Interestingly, the disposition on mootness grounds arguably renders the first fourteen pages of the majority opinion advisory—and, as a result, the opinion might well be described as an advisory opinion about advisory opinions.

One important theme that surfaced throughout the majority opinion was that of governmental harm:  the Court repeatedly emphasized the injury that a government official suffers when he is bound by a constitutional ruling he is unable to challenge.  Acknowledgment of that prospective harm has several implications.  Most obviously, it allows the Court to hear the case.  According to the majority, the fact that the government official has suffered harm justifies an affirmative answer to both the preliminary question of whether a government official who has won on the merits has Article III standing to appeal or petition for certiorari and the “judicial policy” question of whether the Court may consider a case at the request of a prevailing party.

With respect to the Article III issue, the Court explained that the harm to the government official meets the “case or controversy” requirement because it has an obvious “prospective effect” on the parties.  The government official “suffers injury caused by the adverse constitutional ruling” because he must “either change the way he performs his duties or risk a meritorious damages action.”  So because government officials – such as those in Camreta – tasked with performing their official responsibilities suffer harm from adverse decisions on the constitutional merits, they can establish Article III standing.

Likewise, from the perspective of judicial policy, governmental harm justifies placing constitutional pronouncements in qualified immunity cases in a “special category” in which – unlike the vast majority of other cases – prevailing parties may appeal adverse constitutional rulings.  Once again, the majority noted that a government official who loses on a constitutional question but prevails on qualified immunity grounds is faced with an unappealing dilemma: either he must “acquiesce in a ruling he had no opportunity to contest,” or he must blatantly defy the constitutional holding of the court that ruled against him.  This dilemma affects not only the government official, but also others who are similarly situated to him; moreover, this dilemma results from the Court’s explicit invitation for lower courts to make law.

This repeated emphasis on the harm to government officers raises an interesting issue not explicitly addressed in Camreta.  By placing so much emphasis on the injury suffered by the government official, the Court created tension with its holding, first articulated in Hewitt v. Helms, that plaintiffs cannot recover attorneys’ fees under 42 U.S.C. § 1988 when a government defendant is a “prevailing party” as the result of either a ruling on the merits or an immunity determination.  So even if the plaintiff wins a favorable decision on the constitutional merits, if the court finds that the defendants are entitled to qualified immunity, then the plaintiff’s attorneys remain uncompensated.

But the Court’s framing in Camreta of the concept of a prevailing party calls this distinction into question.  In Farrar v. Hobby, the Court explained that “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the relationship between the parties by modifying the defendant’s behavior in a way the directly benefits the plaintiff.”  If – as the Court observed in Camreta – a constitutional ruling has a “significant future effect on the conduct of public officials” and vests the plaintiff with a stake in the constitutional rule, we might expect that such a ruling would “materially alter[] the relationship between the parties” in the manner described in Farrar.  Indeed, in its mootness analysis, the Court even describes the constitutional ruling in a qualified immunity case as a “legally consequential decision.”  From that characterization, it seems a short step to the conclusion that this legally consequential decision has, in fact, materially altered the parties’ relationship as described in Farrar.

Nothing in Camreta links the Court’s holding to the interpretation of the attorneys’ fees provisions in 42 U.S.C. § 1988, but the tension could well infuse future litigation.  On the one hand, the Court now readily acknowledges that harm to the government can serve as a justification for allowing judicial review of the constitutional question.  On the other hand, for purposes of awarding attorneys’ fees, it historically has refused to acknowledge that the plaintiff’s suit has caused the very ruling resulting in that judicial review.  Perhaps future litigation will press the Court on this apparent inconsistency.

Finally, Camreta is noteworthy for the number of opinions it generated.  Only four other Justices joined Justice Kagan’s majority opinion (Chief Justice Roberts and Justices Alito, Ginsburg, and Scalia), and there were three other opinions.  In addition to the concurring opinion by Justice Scalia and the dissent by Justice Kennedy, both discussed above, Justice Sotomayor filed an opinion concurring in the judgment, which was joined by Justice Breyer.  Her opinion noted the difficulty of the appealability question and expressed a preference for deciding the opinion on mootness grounds and going no further.  The number of separate opinions reflects both the complexity of qualified immunity doctrine and the increasing division among the Justices on the direction in which that doctrine should evolve.