Oct 5 (Reuters) – A judicial panel on Tuesday pushed the U.S. Justice Department to better justify a proposal to give federal officials more time to respond to lawsuits against them related to their duties, particularly when they assert a “qualified immunity” defense.
The Justice Department had asked the judiciary’s Advisory Committee on Civil Rules to advance a rule extending from 14 days to 60 the time officials sued in their individual capacities have to answer lawsuits that survive initial motions to dismiss.
But after hearing concerns from some committee members, U.S. District Judge Robert Dow, its Chicago-based chair and an early supporter of the rule change, put off voting on the rule until March and asked the DOJ to gather data on why the rule was needed.
“It seems to me this needs some more work from the department,” Dow said.
He said data on how often the department seeks deadline extensions and receives them could help provide more support for the rule, which has divided panelists and drawn opposition from the civil rights group the NAACP Legal Defense Fund.
The NAACP said the rule would further delay litigation and exacerbate problems with the qualified immunity doctrine, which protects police officers and other types of government officials from litigation in certain circumstances.
The doctrine has helped law enforcement beat back lawsuits accusing them of excessive force and has been a focus of calls for criminal justice reform following the death of George Floyd under the knee of a police officer in Minneapolis last year.
The Justice Department first sought the rule change in August 2020, citing the need for the government, which often represents the officials, to have more time to consider appealing a judge’s rejection of a bid to dismiss a case on immunity grounds.
The department, then under the Trump administration, argued that officials in cases involving immunity defenses usually have an immediate right to appeal when a judge declines to dismiss a case on those grounds.
The department said requiring an official to respond to a complaint during that time was “inconsistent” with an immunity defense and risked jump-starting the production of documents and depositions the defense was meant to guard against.
The Biden administration continued backing the proposal, saying it eliminates the need for the department to ask for what had become routine extensions of the 14-day deadline while the solicitor general considers pursuing appeals.
The advisory committee initially advanced the proposal on 10-5 vote at its April meeting.
But the Standing Committee on Rules of Practice and Procedure expressed concerns about giving the government so much time to respond to a lawsuit and sent it back to the advisory panel for further consideration.
Several committee members on Thursday still expressed support for the rule.
“Qualified immunity is obviously disfavored in some circles these days, but it’s still the law,” said U.S. District Judge R. David Proctor in Birmingham, Alabama, an appointee of Republican President George W. Bush.
But U.S. District Judge Cathy Bissoon, an appointee of former Democratic President Barack Obama in Pittsburgh, questioned what precipitated the department’s request given that “you’ve been living within confines of this rule for some time.”