District court orders denying immunity, absolute or qualified, are immediately appealable at both the motion to dismiss and summary-judgment stages of litigation so long as the ruling turns on a question of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (absolute immunity); see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Immunity “is meant to give government officials a right, not merely to avoid ‘standing trial,’ but also to avoid ‘such pretrial matters as discovery . . ., as “‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” Behrens, 516 U.S. at 308 (quoting Mitchell, 472 U.S. at 526 (quoting in turn Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)).

Without an immediate appeal, this “immunity from suit,” Mitchell, 472 U.S. at 526, would be irretrievably lost when denied at the pre-trial stage. Immunity denials therefore fall within that “small class” of district court decisions that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949); see also Mitchell, 472 U.S. at 524-25. Such “collateral orders” accordingly qualify as final decisions over which the courts of appeals have jurisdiction under 28 U.S.C. § 1291.

The timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264 (1978). Federal Rule of Appellate Procedure 4 governs the time for filing a notice of appeal in cases subject to 28 U.S.C. § 1291. See 9 Moore’s Federal Practice ¶ 110.21 (1991). Rule 4(a)(1)(A) generally requires that the notice be filed with the clerk of the district court within 30 days after entry of the order appealed from. If the United States, a federal agency, or an officer or employee of the United States is a party to the pending action, however, the period for filing a notice of appeal by any party is 60 days. See Fed. R. App. P. 4(a)(1)(B). That includes cases in which federal officers or employees are sued in a personal capacity for their official acts. See id. The rule implements the mandatory time restrictions on appeals in civil cases prescribed in 28 U.S.C. § 2107. Those time restrictions are jurisdictional. See Bowles v. Russell, 551 U.S. 205, 209-10 (2007).

The Appellate Staff of the Civil Division as well as the Constitutional Torts Staff should be consulted well within the 60-day period to help ascertain whether an appeal should be noticed in advance of Solicitor General approval in order to protect the client’s appellate rights. Consultation is especially important because the plaintiff may move in the district court to certify the appeal as frivolous or move to dismiss in the court of appeals for want of jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995).

[updated April 2018]