Texas Attorney General's Office Slapped by 5th Circuit

In Charles v. Grief (No. 07-50537), a Texas State employee sued the State after he was terminated for reporting irregularities at the Texas Lottery Commission. The State answered with a plea of qualified immunity. When the District Court denied the immunity claim, the State appealed (as is typical). The interlocutory appeal is permitted, but apparently is being abused. This is what the Court said --

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 court’s 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.

The cost of interlocutory appeals is not just a financial cost. By the time that the interlocutory appeal is concluded, it is not unusual for 6 months to a year to have passed. Moreover, the Plaintiff has usually been denied any discovery during this time. So, the Plaintiff's case is often markedly weaker because he has been unable to preserve testimony and documentary evidence. But, it might be too much to wish that the Attorney General will actually heed this advice.