Helping Trial Lawyers Navigate the Appellate System

5th Circuit to AG: Stop Bringing Frivolous Appeals

In Charles v. Grief (No. 07-50537), the Fifth Circuit has affirmed the district court’s denial of a state official’s motion for summary judgment based on qualified immunity because the official’s immunity turned on fact issues.  What is remarkable about this decision is the following section from the circuit court’s opinion, which is worth quoting in full (footnote omitted):

The cost in time and money incurred by a public employee who has sued in the belief that he has suffered an adverse employment action as the result of unconstitutional retaliation is significantly increased when, as here, the defendant takes a clearly unwarranted appeal of an interlocutory denial of qualified immunity.  Taking such an appeal is now unconscionable in light of this courts burgeoning precedent uniformly rejecting such appeals of fact-based denials of qualified immunity for lack of appellate jurisdiction, our most recent being Connelly.  Considering the usual disparity in the financial conditions of the parties to such actions, cavalierly 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, Connelly being another.  We trust that counsel for Grief, as well as all other counsel who represent public employers and state actors in such roles, will henceforth carefully heed the case law of this court on point 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.

Do you think General Abbott’s staff got the message?

11/28/07 Update:  The Fifth Circuit issued a revised opinion today, leaving the above-quoted language intact.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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