Second Circuit Discusses Pendent Appellate Jurisdiction; Declines to Exercise

Per Papineau v. Parmley, 465 F.3d 46 (2d Cir. Oct. 4, 2006):

Having dealt with the merits of defendants' appeal, we turn now to plaintiffs' cross-appeal. Plaintiffs ask this Court to exercise pendent jurisdiction over a number of claims. . . . Under the collateral order doctrine, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law [and not of fact], is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). When we take such an appeal, we may exercise pendent jurisdiction over other issues that are not ordinarily subject to interlocutory review only when: (1) they are "inextricably intertwined" with the determination of qualified immunity; or (2) their resolution is "necessary to ensure meaningful review" of the district court's ruling on qualified immunity. Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see also id. at 4, 115 S.Ct. 12039 (cautioning that "a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay [appealable] collateral orders into multi-issue interlocutory appeal tickets"). Finally, we are mindful that "[p]endent appellate jurisdiction is a procedural device that rarely should be used because of the danger of abuse" and that accordingly, we must exercise such jurisdiction "[o]nly in exceptional circumstances." Natale v. Town of Ridgefield, 927 F.2d 101, 104 (2d Cir.1991) (citation omitted).

Each finding on which plaintiffs seek to cross appeal involves issues entirely separate and distinct from the qualified immunity analysis at issue here, including the district court's determinations on the subjective intent in plaintiffs' conspiracy claims, see Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (articulating a "single objective standard" for evaluating qualified immunity and stating that "[e]vidence concerning the defendant's subjective intent is simply irrelevant to that defense"); on plaintiffs' failure properly to include defendants in their captions; on claims of parties who are not before this court on appeal, see Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir.1995) ("[A] claim involving a 'pendent party' is an 'unrelated question' that cannot be resolved under pendent jurisdiction."); and on issues of respondeat superior and supervisor liability, see Swint, 514 U.S. at 51, 115 S.Ct. 1203 (finding no pendent jurisdiction over county commission's appeal where "[t]he individual defendants' qualified immunity turns on whether they violated clearly established federal law [while] the county commission's liability turns on the allocation of law enforcement power in Alabama"). Thus, we have no jurisdiction over plaintiffs' cross-appeal because there are no issues before us "inextricably intertwined" with our qualified immunity analysis.