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New Opinion Issued in FHMBK’s Carswell Case Provides Significant Benefits to Defendants Asserting Qualified Immunity

FHMBK is pleased to announce a new development in the Carswell case which will benefit governmental officials and governmental entities throughout Texas.

When a district judge imposed a scheduling order which summarily denied pending motions to dismiss based on qualified immunity, and which subjected governmental officials to discovery in their role as witnesses with respect to claims against their governmental employer, FHMBK attorneys, Thomas Brandt, Laura O’Leary, and John Husted, brought an interlocutory appeal, arguing that Ashcroft v. Iqbal, 556 U.S. 662 (2009), prohibits any discovery pending resolution of the individual defendants’ assertions of qualified immunity.  In June, the Fifth Circuit issued an opinion in the case, Carswell v. Camp, 37 F.4th 1062 (5th Cir. 2022), holding that Iqbal makes clear that a plaintiff asserting constitutional claims against an officer must survive a motion to dismiss asserting qualified immunity without any discovery.

The Fifth Circuit’s initial opinion in Carswell also purported to overrule a line of cases from the Fifth Circuit which identified a “careful procedure” under which district courts could defer qualified immunity rulings and permit narrowly tailored discovery against immunity-asserting defendants if the district court found that further factual development was necessary to ascertain the availability of the qualified immunity defense.  The plaintiffs timely filed a petition for rehearing en banc. On November 30, 2022, the Fifth Circuit denied the petition for rehearing en banc, withdrew the June 17, 2022 opinion, and replaced it with a new opinion.

In Carswell v. Camp, No 21-10171, 2022 U.S. App. LEXIS 33072, ___ F.4th ___ (November 30, 2022), the Fifth Circuit again held that: (1) district courts cannot defer ruling on an assertion of qualified immunity made in a motion to dismiss; and (2) district courts cannot permit any discovery prior to ruling on an assertion of qualified immunity made in a motion to dismiss, including discovery from immunity-asserting individual defendants in their capacity as witnesses to claims against their governmental employers.

In its new opinion, the Fifth Circuit also explained that the “careful procedure” identified in Lion Boulos v. Wilson, 834 F.2d 504, 508-09 (5th Cir. 1987), and its progeny must be understood in light of subsequent Supreme Court precedent, including Iqbal, which make clear that a plaintiff asserting constitutional claims against an officer asserting qualified immunity must survive the motion to dismiss without any discovery.  The Court explained that, if a district court finds that the pleadings are sufficient to overcome qualified immunity and denies the defendant’s motion to dismiss, the defendant asserting qualified immunity has at least two choices: (1) immediately appeal the denial of qualified immunity; or (2) move the district court for discovery limited to the factual disputes relevant to whether qualified immunity applies, then reassert qualified immunity in a summary judgment motion.  The Fifth Circuit explained that the defendant alone enjoys this choice because only the defendant-official enjoys qualified immunity from suit.

In describing the “careful procedure” from Lion Boulos and its progeny, the Fifth Circuit emphasized that its purpose is only to allow the district court to rule on a defendant’s assertion of qualified immunity, not to provide a backdoor for plaintiffs to circumvent the defendant’s immunity from suit.  The Fifth Circuit explained that, when a qualified immunity asserting official “determines that any pre-ruling discovery sought or ordered in the district court crosses the line from permissible Lion Boulos discovery to impermissible vitiation of the official’s immunity from suit, the collateral order doctrine authorizes an immediate appeal.”

The Court’s ruling in Carswell provides significant benefits to governmental entities and officials, as it will safeguard one of the central benefits of qualified immunity—protection from the burdens of discovery—which has been eroded in recent years.  This opinion will particularly affect how claims against governmental officials are litigated in the Fifth Circuit.