                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 LOUIS TAYLOR, a single man,                      No. 17-16980
               Plaintiff-Appellee,
                                                   D.C. No.
                    v.                        4:15-cv-00152-RM

 COUNTY OF PIMA, a body politic;
 CITY OF TUCSON, a body politic,                    OPINION
           Defendants-Appellants.


        Appeal from the United States District Court
                 for the District of Arizona
        Rosemary Márquez, District Judge, Presiding

           Argued and Submitted August 15, 2018
                 San Francisco, California

                      Filed January 17, 2019

        Before: Mary M. Schroeder, Eugene E. Siler,*
            and Susan P. Graber, Circuit Judges.

                   Opinion by Judge Graber;
                 Concurrence by Judge Graber;
                  Dissent by Judge Schroeder


   *
     The Honorable Eugene E. Siler, Circuit Judge for the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
2                  TAYLOR V. COUNTY OF PIMA

                            SUMMARY**


                             Civil Rights

    The panel dismissed, in part, an interlocutory appeal and
affirmed, in part, the district court’s order granting a motion
to dismiss in an action brought pursuant to 42 U.S.C. § 1983
alleging violations of plaintiff’s constitutional rights to due
process and a fair trial.

    In 1972, a jury convicted plaintiff in state court of 28
counts of felony murder on the theory that he had started a
deadly fire at a Tucson hotel. In 2012, while still in prison,
plaintiff filed a state post-conviction petition advancing
newly discovered evidence that arson did not cause the hotel
fire. The government and plaintiff entered into a plea
agreement in 2013 under which the original convictions were
vacated and, in their place, plaintiff pleaded no contest to the
same counts, was resentenced to time served, and was
released from prison. Plaintiff then brought his 42 U.S.C.
§ 1983 action against Pima County and the City of Tucson.
The district court held that the County of Pima was not
entitled to Eleventh Amendment immunity, but that plaintiff
could not recover damages for wrongful incarceration.

    The panel first gave deference to this court’s previous
order, issued by a motions panel, which denied the County’s
application for permission to appeal the denial of immunity
pursuant to 28 U.S.C. § 1292(b). The panel further concluded
that it lacked jurisdiction over the County’s appeal under

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                TAYLOR V. COUNTY OF PIMA                     3

§ 1291’s collateral-order doctrine because the County
appealed only from a denial of immunity from liability, as
opposed to immunity from suit.

    The panel exercised its discretion under 28 U.S.C.
§ 1292(b) to review the issue of whether plaintiff could
recover compensatory damages for wrongful incarceration.
The panel noted that a plaintiff in a § 1983 action may not
recover incarceration-related damages for any period of
incarceration supported by a valid, unchallenged conviction
and sentence. The panel held that because plaintiff’s valid
2013 conviction and sentence were the sole legal causes of
his incarceration, he could not recover damages.

    Concurring, Judge Graber wrote separately to explain that
in Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir.
2002), this court wrongly exercised jurisdiction over an
interlocutory appeal in similar circumstances, and that, in an
appropriate case, the court should overrule Cortez in its en
banc capacity.

    Dissenting in part, Judge Schroeder wrote that the panel’s
decision that plaintiff could not recover compensatory
damages magnified an already tragic injustice. Judge
Schroeder stated that plaintiff accepted the 2013 plea offer
because his only alternative was to stay in prison and wait for
his petition for collateral relief to wend its way through the
courts, a process that could take years.
4               TAYLOR V. COUNTY OF PIMA

                         COUNSEL

Nancy J. Davis (argued), Deputy County Attorney, Civil
Division, Pima County Attorney’s Office, Tucson, Arizona,
for Defendants-Appellants.

John P. Leader (argued), Leader Law Firm, Tucson, Arizona;
Timothy P. Stackhouse, Peter Timoleon Limperis, and
Lindsay E. Brew, Miller Pitt Feldman & McAnally P.C.,
Tucson, Arizona; for Plaintiff-Appellee.


                          OPINION

GRABER, Circuit Judge:

    In 1972, a jury convicted Louis Taylor in Arizona state
court of 28 counts of felony murder, on the theory that he had
started a deadly fire at a Tucson hotel. In 2012, while still in
prison, Taylor filed a state post-conviction petition advancing
newly discovered evidence: an expert, using new and more
sophisticated investigative techniques, determined that arson
did not cause the hotel fire. The government disputed
Taylor’s new theory but nevertheless agreed to the following
procedure. The government and Taylor entered into a plea
agreement in 2013 under which the original convictions were
vacated and, in their place, Taylor pleaded no contest to the
same counts, was resentenced to time served, and was
released from prison.

    Taylor then sued Pima County and the City of Tucson in
state court, under 42 U.S.C. § 1983, alleging violations of his
constitutional rights to due process and a fair trial. With
respect to the County, Taylor alleged unconstitutional
                TAYLOR V. COUNTY OF PIMA                      5

practices, policies, and customs regarding criminal
prosecutions, including racially motivated prosecutions of
African-Americans and a failure to train and supervise deputy
prosecutors. The City removed the case to federal court, and
the County consented to removal.

    The County then moved to dismiss Taylor’s operative
complaint. Two of the County’s arguments are relevant on
appeal. First, the County argued that the relevant government
officials acted on behalf of the State, not the County; the
County asserted that, accordingly, it was entitled to “Eleventh
Amendment immunity.” Second, the County argued that,
because all of Taylor’s time in prison was supported by the
valid 2013 criminal judgment, Taylor could not recover
damages for wrongful incarceration.

    The district court granted in part and denied in part the
motion to dismiss. The court held that the County was not
entitled to Eleventh Amendment immunity. But the court
agreed with the County that Taylor could not recover
damages for wrongful incarceration. The district court then
certified its order for interlocutory appeal pursuant to
28 U.S.C. § 1292(b), concluding that resolution of several
legal issues “may materially advance the ultimate termination
of the litigation.”

    Both parties applied to this court for permission to appeal.
See 28 U.S.C. § 1292(b) (permitting an “application for an
appeal hereunder”). The County sought permission to appeal
the district court’s denial of immunity, and Taylor sought
permission to appeal the district court’s ruling that he may
not recover damages for wrongful incarceration.
6               TAYLOR V. COUNTY OF PIMA

    A motions panel of this court denied both applications to
appeal pursuant to § 1292(b). But the motions panel
construed the County’s application, in part, as a timely notice
of appeal from the denial of Eleventh Amendment immunity
from suit. See Cortez v. County of Los Angeles, 294 F.3d
1186, 1188 (9th Cir. 2002) (holding that we have appellate
jurisdiction under the collateral-order doctrine over a denial
of Eleventh Amendment immunity from suit (citing Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 147 (1993))). The motions panel therefore
ordered that the appeal proceed under the collateral-order
doctrine of 28 U.S.C. § 1291.

    In accordance with that order, the parties then filed briefs
addressing the issue of the County’s asserted immunity under
the Eleventh Amendment. At our request, the parties also
filed supplemental briefs addressing whether Taylor may
recover damages for wrongful incarceration.

    A. Eleventh Amendment Immunity

    The County asserts that we have jurisdiction to review the
district court’s ruling on Eleventh Amendment immunity
under the two jurisdictional provisions noted above:
discretionary review under § 1292(b) and the collateral-order
doctrine under § 1291.

   “When a party seeks a section 1292(b) interlocutory
appeal, the court of appeals must undertake a two-step
analysis.” Arizona v. Ideal Basic Indus. (In re Cement
Antitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). First,
we determine whether the appeal meets the legal
requirements of § 1292(b). Id. “If we conclude that the
requirements have been met, we may, but need not, exercise
                TAYLOR V. COUNTY OF PIMA                       7

jurisdiction. The second step in our analysis is therefore to
decide whether, in the exercise of the discretion granted us by
the statute, we want to accept jurisdiction.” Id.; see 28 U.S.C.
§ 1292(b) (“The Court of Appeals . . . may thereupon, in its
discretion, permit an appeal to be taken from such order . . . .”
(emphasis added)); see also Gelboim v. Bank of Am. Corp.,
135 S. Ct. 897, 906 (2015) (stating that a district court’s
certification under § 1292(b) “may be accepted or rejected in
the discretion of the court of appeals”). Where, as here, the
motions panel has decided the § 1292(b) issue in the first
instance, “we give deference to the ruling of the motions
panel.” Kuehner v. Dickinson & Co., 84 F.3d 316, 318 (9th
Cir. 1996). With respect to the question of Eleventh
Amendment immunity, we see no reason to second-guess the
motions panel’s denial of interlocutory review under
§ 1292(b).

    We therefore turn to whether we have appellate
jurisdiction under § 1291. On preliminary review, the
motions panel concluded that appellate jurisdiction appeared
to be proper under the collateral-order doctrine because the
County asserted “Eleventh Amendment immunity.”
“Although we defer to the ruling of the motions panel
granting an order for interlocutory appeal, we have an
independent duty to confirm that our jurisdiction is proper.”
Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir.
2011) (internal quotation marks omitted). For the reasons
stated below, we now conclude that the collateral-order
doctrine does not apply here.

    In an interlocutory appeal, we have appellate jurisdiction
under 28 U.S.C. § 1291 to consider claims of immunity from
suit, but we lack such appellate jurisdiction to consider claims
of immunity from liability. SolarCity Corp. v. Salt River
8               TAYLOR V. COUNTY OF PIMA

Project Agric. Improvement & Power Dist., 859 F.3d 720,
725 (9th Cir. 2017). Under Puerto Rico Aqueduct, 506 U.S.
at 144–45, an ordinary claim of Eleventh Amendment
immunity encompasses a claim of immunity from suit. The
rationale of Puerto Rico Aqueduct is that an interlocutory
appeal is necessary to vindicate a state entity’s entitlement to
immunity from suit, which would be lost if a case were
permitted to go to trial. Id. But an immunity from liability
may be vindicated fully after final judgment, so the collateral-
order doctrine does not encompass an interlocutory appeal
from a denial of immunity from liability. See SolarCity,
859 F.3d at 725 (“Unlike immunity from suit, immunity from
liability can be protected by a post-judgment appeal. Denials
of immunity from liability therefore do not meet the
requirements for immediate appeal under the collateral-order
doctrine.” (citation omitted)).

    Before us, Taylor argued that the County, by consenting
to removal of the case to federal court, waived Eleventh
Amendment immunity. See Lapides v. Bd. of Regents of
Univ. Sys., 535 U.S. 613, 624 (2002) (holding that the state’s
consenting to removal to federal court “waived its Eleventh
Amendment immunity” with respect to state law claims);
Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (extending
Lapides to federal law claims and announcing “a
straightforward, easy-to-administer rule in accord with
Lapides:       Removal waives Eleventh Amendment
immunity.”). In response, the County cited decisions from
other circuits that have held that removal waives immunity
from suit but does not waive immunity from liability. See,
e.g., Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir.
2013) (“We hold that although the Board’s removal to federal
court waived its immunity-based objection to a federal forum,
the Board retained its immunity from liability . . . .”). The
                TAYLOR V. COUNTY OF PIMA                       9

County clarified that, in this case, it was asserting only
immunity from liability. See, e.g., Reply Brief at 17 (“Pima
County asserted Eleventh Amendment immunity as a
substantive bar to Taylor’s claim . . . . In other words, it was
asserted as a bar to liability rather than a bar to the federal
court’s ability to hear Taylor’s claim.” (emphasis added)).
The County’s asserted immunity from liability can be
vindicated fully after final judgment; accordingly, the
collateral-order doctrine of § 1291 does not apply here.
SolarCity, 859 F.3d at 725.

    In conclusion, we exercise our discretion under § 1292(b)
to deny the County’s application for permission to appeal,
and we conclude that § 1291’s collateral-order doctrine does
not apply. We therefore dismiss the County’s appeal.

    B. Damages for Wrongful Incarceration

    1. Appellate Jurisdiction

    Taylor asks us to exercise our discretion under § 1292(b)
to reconsider the motions panel’s denial of his application for
permission to appeal. He asks that we review the district
court’s ruling that he may not recover compensatory damages
for wrongful incarceration.         In the highly unusual
circumstances of this case, we agree to review that issue.

    Taylor seeks other forms of relief, such as nominal
damages, so the district court’s ruling does not dispose of his
case entirely. But Taylor emphasizes the importance of the
incarceration-related damages. From a practical standpoint,
the district court’s ruling likely resolves a substantial portion
of his case. Moreover, if we decline to review this issue now,
he will not be able to obtain review until after discovery and,
10              TAYLOR V. COUNTY OF PIMA

possibly, a trial. That ordinary result from a denial of
interlocutory review has, in Taylor’s view, uncommon
consequences here. Taylor notes that he is in his sixties,
having spent most of his life—42 years—in prison. The
entire basis of his complaint is that his decades in prison were
unconstitutional. He characterizes having to wait additional
years before this important issue is resolved as “yet another
miscarriage of justice.”

     As noted, we ordinarily do not disturb a motions panel’s
determination under § 1292(b). Kuehner, 84 F.3d at 318.
But we agree with Taylor that a departure from our ordinary
practice is justified, both because his situation is rare and
because our own rulings have added to the delay. We
initially denied discretionary review but ordered briefing on
the issue of Eleventh Amendment immunity, further
forestalling final resolution of this case. We are persuaded to
exercise our discretion under § 1292(b) to resolve this issue
now.

     2. Discussion

    Taylor seeks damages for wrongful incarceration
stemming from the 42 years that he spent in prison. The
Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477
(1994), provides an important limitation on Taylor’s claims.
Under Heck, a plaintiff in a § 1983 action may not seek a
judgment that would necessarily imply the invalidity of a
state-court conviction or sentence unless, for example, the
conviction had been vacated by the state court. Id. at 486–87.
Here, Taylor’s 1972 jury conviction has been vacated by the
state court, so Heck poses no bar to a challenge to that
conviction or the resulting sentence. But Taylor’s 2013
conviction, following his plea of no contest, remains valid.
                TAYLOR V. COUNTY OF PIMA                     11

Accordingly, Taylor may not state a § 1983 claim if a
judgment in his favor “would necessarily imply the invalidity
of his [2013] conviction or sentence.” Id. at 487. As the
district court summarized, “Heck does not bar [Taylor] from
raising claims premised on alleged constitutional violations
that affect his 1972 convictions but do not taint his 2013
convictions.” Recognizing that limitation, Taylor stresses
that “[h]e challenges his 1972 prosecution, convictions and
sentence and does not challenge his 2013 ‘no contest’ pleas
or sentence.” (Emphasis added.)

    Taylor alleges that his 1972 conviction and resulting
sentence were plagued by constitutional violations and that
those errors initially caused his incarceration. Critically,
however, all of the time that Taylor served in prison is
supported by the valid 2013 state-court judgment. The state
court accepted the plea agreement and sentenced Taylor to
time served. For that reason, even if Taylor proves
constitutional violations concerning the 1972 conviction, he
cannot establish that the 1972 conviction caused any
incarceration-related damages. As a matter of law, the 2013
conviction caused the entire period of his incarceration.

    Our decision in Jackson v. Barnes, 749 F.3d 755 (9th Cir.
2014), is instructive. A jury originally convicted the plaintiff
of rape and murder. Id. at 758. His murder conviction—but
not his rape conviction—was later vacated. Id. at 759 & n.1.
He was later convicted, once again, of murder. Id. at 759. In
his § 1983 action, we concluded that he was “not entitled to
compensatory damages for any time he spent in prison”
because he was “not imprisoned for any additional time as a
result of his first, illegal conviction.” Id. at 762. Jackson
differs factually from this case in that Jackson’s term of
incarceration was supported fully by the original rape
12              TAYLOR V. COUNTY OF PIMA

conviction, which had not been overturned. Id. But the
general principle applies equally here: when a valid,
unchallenged conviction and sentence justify the plaintiff’s
period of imprisonment, then the plaintiff cannot prove that
the challenged conviction and sentence caused his
imprisonment and any resulting damages.

    The First Circuit reached the same result in a case that is
factually indistinguishable from this one. In Olsen v.
Correiro, 189 F.3d 52, 55 (1st Cir. 1999), a jury found the
plaintiff guilty of murder, but the state court later overturned
that conviction. The plaintiff then pleaded nolo contendere
to manslaughter, and the state court sentenced him to time
served. Id. In the plaintiff’s § 1983 action challenging the
constitutionality of the original jury conviction, the First
Circuit held that he could not recover incarceration-related
damages because he could not establish that the alleged
constitutional violations caused his imprisonment. Id. at 70.
“Olsen’s valid manslaughter conviction and sentence are the
sole legal cause of his incarceration.” Id. Similarly here,
Taylor’s valid 2013 conviction and sentence are the sole legal
causes of his incarceration; he cannot recover damages for
wrongful incarceration.

    Our decision also accords with the Second Circuit’s
decision in Poventud v. City of New York, 750 F.3d 121
(2d Cir. 2014) (en banc). A jury convicted the plaintiff of
serious crimes but, seven years later, a state court vacated the
conviction and sentence. Id. at 124. The plaintiff then
pleaded guilty to a lesser crime, and a state court imposed a
one-year sentence. Id. In the plaintiff’s § 1983 action, the
Second Circuit held that he could seek damages for wrongful
incarceration for the years he spent in prison, except for the
one year that was supported by the valid criminal judgment:
                TAYLOR V. COUNTY OF PIMA                     13

“Poventud cannot seek to collect damages for the time that he
served pursuant to his plea agreement (that is, for the year-
long term of imprisonment).” Id. at 136 (citing Olsen,
189 F.3d at 55). Applying the same principle here, Taylor
cannot seek to collect damages for the time that he served
pursuant to his plea agreement.

    We agree with the analyses and conclusions of our sister
circuits. A plaintiff in a § 1983 action may not recover
incarceration-related damages for any period of incarceration
supported by a valid, unchallenged conviction and sentence.
We take no pleasure in reaching this unfortunate result, given
Taylor’s serious allegations of unconstitutional actions by the
County. But we cannot disregard the limitations imposed by
Congress and the Supreme Court on the scope of § 1983
actions.

    DISMISSED in part and AFFIRMED in part. The
parties shall bear their own costs on appeal.



GRABER, Circuit Judge, concurring:

    I join the opinion in full. I write separately to explain my
view that, in Cortez v. County of Los Angeles, 294 F.3d 1186
(9th Cir. 2002), we wrongly exercised jurisdiction over an
interlocutory appeal in circumstances similar to those we face
here and that, in an appropriate case, we should overrule
Cortez in our en banc capacity.

   “[O]nly States and arms of the State possess immunity
from suits authorized by federal law.” N. Ins. Co. of N.Y. v.
Chatham County, 547 U.S. 189, 193 (2006). Counties do not.
14              TAYLOR V. COUNTY OF PIMA

Lincoln County v. Luning, 133 U.S. 529 (1890). Here, the
only appellant is Pima County. The County plainly is not a
State, and it has not asserted that it is an “arm of the State.”
See Mitchell v. L.A. Cty. Cmty. Coll. Dist., 861 F.2d 198,
201–02 (9th Cir. 1989) (describing the factors to consider
when deciding whether a governmental entity is an “arm of
the state”). Accordingly, the County is not entitled to
Eleventh Amendment immunity. The analysis is truly that
simple. See, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999)
(“[Sovereign] immunity does not extend to suits prosecuted
against a municipal corporation or other governmental entity
which is not an arm of the State.”); Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70 (1989) (“States are protected by
the Eleventh Amendment while municipalities are not[.]”);
SolarCity Corp. v. Salt River Project Agric. Improvement &
Power Dist., 859 F.3d 720, 729 (9th Cir. 2017)
(“[M]unicipalities . . . may not rely on . . . Eleventh
Amendment immunity.”); Eason v. Clark Cty. Sch. Dist.,
303 F.3d 1137, 1141 (9th Cir. 2002) (“[T]he Eleventh
Amendment does not extend to counties and municipal
corporations.”).

   The County nevertheless seeks to assert Eleventh
Amendment immunity and thereby to invoke our jurisdiction
over this interlocutory appeal under the collateral-order
doctrine. The County’s attempt requires some explanation.

    Plaintiff Louis Taylor has asserted claims against the
County under Monell v. Department of Social Services,
436 U.S. 658 (1978), which requires proof of a policy,
practice, or custom by the County. He asserts that the actions
of certain government officials amounted to a practice or
custom by the County. The County’s sole argument on
                TAYLOR V. COUNTY OF PIMA                     15

appeal is that the relevant officials were, in fact, working on
behalf of the State, so the County cannot be liable.

    The Supreme Court has recognized the viability of that
argument: if the relevant officials were working on behalf of
the State, then any practice or custom was a State practice or
custom, not a municipal practice or custom. McMillian v.
Monroe County, 520 U.S. 781 (1997). But that argument
does not bear on whether the municipality has Eleventh
Amendment immunity. Proof that the relevant officials did
not work for the municipality defeats the plaintiff’s case but
by virtue of an ordinary failure to prove an element of a
claim—here, the existence of a municipal policy, practice, or
custom. If the defendant municipality is correct that the
relevant official was a State official, then the plaintiff has
failed to state a claim against the municipality. Eleventh
Amendment immunity plays no role.

    Nowhere in McMillian does the Supreme Court mention
the Eleventh Amendment or immunity from suit. (Nor had
the circuit court of appeals mentioned those doctrines.
McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996).) Not
surprisingly, our cases, too, describe this doctrine in terms of
whether the municipality was the actor, rather than in terms
of sovereign immunity and the Eleventh Amendment. See,
e.g., Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th
Cir. 2000) (“[T]he San Diego County district attorney was
acting as a state official in deciding to proceed with Weiner’s
criminal prosecution. Weiner’s § 1983 claim against the
County, therefore, fails. The County was not the actor; the
state was.” (emphasis added)); Jackson v. Barnes, 749 F.3d
755, 767 (9th Cir. 2014) (“Jackson alleges, in effect, that the
District Attorney’s Office is liable for Murphy’s unlawful
prosecutorial conduct. The District Attorney’s Office,
16                TAYLOR V. COUNTY OF PIMA

however, acts as a state office with regard to actions taken in
its prosecutorial capacity, and is not subject to suit under
§ 1983. Weiner, 210 F.3d at 1030.”)1; United States v.
County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018)
(“Because the traffic-stop policies at issue fall within the
scope of a sheriff’s law-enforcement duties, we conclude that
Arpaio acted as a final policymaker for Maricopa County
when he instituted those policies.”); Goldstein v. City of Long
Beach, 715 F.3d 750 (9th Cir. 2013) (lengthy analysis with no
mention of the Eleventh Amendment or sovereign immunity);
Botello v. Gammick, 413 F.3d 971 (9th Cir. 2005) (same);
Brewster v. Shasta County, 275 F.3d 803, 805 (9th Cir. 2001)
(“The question is whether he is a policymaker on behalf of
the state or the county; if he is a policymaker for the state,
then the county cannot be liable for his actions.”).

    Most importantly, precisely the same issue as decided in
McMillian—whether Alabama sheriffs act for the state or the
county—arose in a case before the Supreme Court in 1995,
two years before McMillian. In Swint v. Chambers County
Commission, 514 U.S. 35, 41 (1995), the Supreme Court
“granted certiorari to review the Court of Appeals’ decision
that Sheriff Morgan is not a policymaker for Chambers
County.” But the Court then ordered supplemental briefing
on the issue of appellate jurisdiction. Id. In its opinion, the
Supreme Court unanimously held that the court of appeals
lacked appellate jurisdiction:




     1
      The district court in Jackson had dismissed the case on the ground
of the Eleventh Amendment, but we did not adopt that formulation;
instead, we cited Weiner, which did not mention the Eleventh
Amendment.
                TAYLOR V. COUNTY OF PIMA                    17

            The commission’s assertion that Sheriff
        Morgan is not its policymaker does not rank,
        under our decisions, as an immunity from suit.
        Instead, the plea ranks as a “mere defense to
        liability.” An erroneous ruling on liability
        may be reviewed effectively on appeal from
        final judgment. Therefore, the order denying
        the county commission’s summary judgment
        motion was not an appealable collateral order.

Id. at 43 (citation omitted).

    There is no doubt that the underlying substantive
issue—whether the sheriff acted for the county or the
state—was precisely the same two years later in McMillian,
because the Court in McMillian noted that the Eleventh
Circuit in Swint had reached the issue but that the Supreme
Court had vacated the Eleventh Circuit’s decision for lack of
appellate jurisdiction. McMillian, 520 U.S. at 786 n.3 (citing
“Swint v. Wadley, 5 F.3d 1435, 1450–51 (1993), vacated for
lack of appellate jurisdiction, 514 U.S. 35 (1995)” (emphasis
added)). Applying Swint, other circuit courts have held,
unambiguously, that “[w]hen a county appeals asserting that
a sheriff is not a county policymaker under § 1983, that
presents a defense to liability issue for the county over which
we do not have interlocutory jurisdiction.” Manders v. Lee,
338 F.3d 1304, 1307 n.6 (11th Cir. 2003) (en banc); see also
Skelton v. Camp, 234 F.3d 292, 297 (5th Cir. 2000) (“[T]he
determination of which entity a defendant serves as policy
maker presents a liability issue, not an immunity issue.”);
accord Hunter v. Town of Mocksville, 789 F.3d 389, 403 n.4
(4th Cir. 2015). Applying Swint’s rule here, we lack
jurisdiction over the County’s interlocutory appeal because
18              TAYLOR V. COUNTY OF PIMA

the County argues solely that the relevant officials were not
County policymakers.

    Our decision in Cortez overlooked this fundamental
jurisdictional defect. Cortez, like this case, was an
interlocutory appeal by a county from the denial of Eleventh
Amendment immunity. 294 F.3d at 1188. We stated,
correctly, that we had jurisdiction over the denial of Eleventh
Amendment immunity, but we then reached the issue whether
the sheriff acted on behalf of the county or the state,
incorrectly characterizing that issue as pertaining to the
Eleventh Amendment. Id. at 1188–89. We did not cite
Swint. Accordingly, the rule in our circuit, unlike the rule in
every other circuit, is that interlocutory appeals may be taken
from a district court’s rejection of a municipality’s argument
that the relevant government officials acted on behalf of the
State and not the municipality.

   We plainly erred in Cortez. In an appropriate case, we
should undo this error in our en banc capacity.



SCHROEDER, Circuit Judge, dissenting as to Part B.2:

    This decision magnifies an already tragic injustice. At the
time of Tucson’s Pioneer Hotel fire in 1972, Louis Taylor
was an African American male of sixteen. Arrested near the
hotel, he was convicted on the basis of little more than that
proximity and trial evidence that “black boys” like to set
fires. He has spent a lifetime of 42 years in prison following
his wrongful conviction.
                TAYLOR V. COUNTY OF PIMA                      19

    When he filed his state court petition the county that had
prosecuted him did not even respond to his allegations of
grievous deprivations of civil rights, including the
withholding of evidence that the fire was not caused by arson
at all, and the indicia of racial bias underlying the entire
prosecution. Instead of responding, the county offered Taylor
his immediate freedom in return for his pleading no contest
to the original charges and agreeing to a sentence of time
served.

    He accepted the offer, since his only alternative was to
stay in prison and wait for his petition for collateral relief to
wend its way through the courts, a process that could take
years. Because his original conviction had been vacated and
all of the prison time he had served was as a result of that
invalid conviction, he filed this action to recover damages for
his wrongful incarceration.

    Yet the majority holds that he can recover nothing. Why?
Because it interprets the few cases with circumstances
remotely similar to this one to require the admittedly unfair
holding that his plea agreement somehow validates or
justifies the original sentence that deprived Taylor of a
meaningful life.

    In my view our law is not that unjust.

     Our Circuit law actually supports the award of damages
for the time Taylor served in prison as a result of an unlawful,
and now vacated conviction. Our leading case is Jackson v.
Barnes, 749 F.3d 755 (9th Cir. 2014), where, as here, the
plaintiff’s original conviction was vacated on habeas review.
Hence, a claim for damages resulting from wrongful
incarceration was not barred by Heck v. Humphrey. Jackson,
20              TAYLOR V. COUNTY OF PIMA

749 F.3d at 760–61. The majority acknowledges the same is
true here.

    In Jackson the plaintiff could not recover damages,
however, because the wrongful conviction had not yet
resulted in any wrongful incarceration. This was because he
was still serving other, earlier imposed sentences and never
began serving the term imposed as a result of the unlawful
conviction. In other words, there was a lack of causation. Id.
at 762. Taylor, by contrast, served decades of imprisonment
as a result of his first, vacated conviction, so there is no lack
of causation here. Under Jackson, he should recover. That
Taylor later, in order to gain prompt release, pleaded no
contest to the charges and to a sentence of time served, does
not undo the causal sentencing chain set in motion after the
original, invalid conviction. The majority’s discussion is not
consistent with Jackson.

     The Second Circuit’s decision in Poventud also supports
reversal. Poventud v. City of N.Y., 750 F.3d 121 (2d Cir.
2014) (en banc). Poventud’s conviction was vacated on
collateral attack, on the basis of a Brady violation, and a new
trial was ordered. Id. at 124. He then pleaded guilty to a
lesser charge, pursuant to a plea agreement that dismissed all
other charges and stipulated to a one-year sentence, with time
already served. Id. The Second Circuit held that Poventud’s
Brady-based claim was not Heck-barred insofar as it related
to his first conviction. Id. at 124–25, 134–36. As the en banc
court explained, were Poventud to win at trial in his civil
rights suit, “the legal status of his [second conviction] would
remain preserved.” Id. at 138 (quoted by Jackson, 749 F.3d
at 761). He was permitted to pursue a claim of damages for
the time he served beyond the one year plea agreement
stipulation. Judge Lynch’s concurrence is also instructive, as
                 TAYLOR V. COUNTY OF PIMA                       21

it focuses on the injustice of relying on the subsequent guilty
plea to deny Poventud a remedy for the unfairness of the first
trial. Id. at 138–47. The majority’s decision ignores such
injustice in this case.

    Taylor’s case is even more compelling than those of
Jackson and Poventud because his first conviction was so
deeply tainted that we now know the disastrous fire may not
have been set by anyone, and the prosecution was without
adequate foundation from the beginning. He won more than
a new trial, but virtual exoneration. His situation is therefore
also different from the situation in Olsen v. Correiro,
189 F.3d 52 (1st Cir. 1999), where the plaintiff’s murder
conviction was overturned but he was subsequently convicted
of manslaughter.

    Far from being the product of a new, constitutionally-
conducted second trial, Taylor’s second conviction was the
product of his desperate circumstances. In his 60’s, he faced
acceptance of the plea offer or waiting years for a habeas
petition to work its way through the courts. We should not
tolerate such coercive tactics to deprive persons of a remedy
for violations of their constitutional rights. To say such a
plea justifies the loss of 42 years, as the majority asserts, is to
deny the reality of this situation and perpetuate an abuse of
power that § 1983 should redress.

    Our court has spoken to this before:

        “When prosecutors betray their solemn
        obligations and abuse the immense power
        they hold, the fairness of our entire system of
        justice is called into doubt and public
22               TAYLOR V. COUNTY OF PIMA

        confidence in it is undermined.” Silva v.
        Brown, 416 F.3d 980, 991 (9th Cir. 2005).

     So has the Supreme Court:

        “It hardly seems unjust to require a municipal
        defendant which has violated a citizen’s
        constitutional rights to compensate him for
        the injury suffered thereby. Indeed, Congress
        enacted § 1983 precisely to provide a remedy
        for such abuses of official power.” Owen v.
        City of Independence, 445 U.S. 622, 654
        (1980).

     I therefore regretfully and respectfully dissent.
