Several collateral-order decisions, a cert grant on administrative appeals, premature notices of appeal, and more.
January 13, 2020
Last week was a busy one. Several opinions (including one from the en banc Fifth Circuit) addressed appealability under the collateral-order doctrine. The Federal Circuit held that a premature notice of appeal was saved by a party abandoning all outstanding claims at oral argument. The Eleventh Circuit correctly addressed pendent appellate jurisdiction in qualified-immunity appeals. And the Supreme Court granted cert on an administrative appeals issue. Plus a bit of admiralty and contempt appeals.
- The en banc Fifth Circuit held that denials of appointed counsel are not immediately appealable
- The Fourth Circuit held that denials of Faretta motions are not immediately appealable
- The Third Circuit held that nondisclosure orders for grand-jury subpoenas are immediately appealable
- The Fifth Circuit on arbitration, admiralty, and the collateral-order doctrine
- The Federal Circuit held that abandonment of an outstanding claim at oral argument saved a premature appeal
- The Eleventh Circuit declined pendent appellate jurisdiction over a plaintiff’s cross-appeal in a qualified-immunity appeal
- The Eleventh Circuit held that it could review conditional contempt sanctions alongside non-conditional sanctions
- Cert granted in Salinas v. U.S. Railroad Retirement Board
- Reply brief filed in CACI Premier Technology, Inc. v. Al Shimari
The en banc Fifth Circuit held that denials of appointed counsel are not immediately appealable
In Williams v. Catoe, the en banc Fifth Circuit held that orders denying appointed counsel in § 1983 suits are not immediately appealable via the collateral-order doctrine. The court concluded that these orders were effectively reviewable in an appeal from a final judgment. In doing so, the Fifth Circuit overruled its decision in Robbins v. Maggio and joined nearly every other circuit to address this matter. It appears that only the Eighth Circuit remains in treating orders denying appointed counsel as immediately appealable.
You can read my post on Williams for more.
Williams v. Catoe, 2020 WL 64476 (5th Cir. Jan 7, 2020), available at the Fifth Circuit and Westlaw.
The Fourth Circuit held that denials of Faretta motions are not immediately appealable
In United States v. Sueiro, the Fourth Circuit held that criminal defendants cannot immediately appeal the denial of motions to represent themselves at trial.
The defendant in Sueiro repeatedly sought to represent himself. (These motions are sometimes called “Faretta motions” for Faretta v. California, the Supreme Court decision that recognized criminal defendants’ Sixth Amendment right to represent themselves.) The district court denied those requests, and the defendant sought to appeal that denial so that he could represent himself at trial.
The Fourth Circuit concluded that denials of Faretta motions are not appealable under the collateral-order doctrine. That doctrine—a judicially created exception to the regular final-judgment rule—deems certain kinds of district court decisions final and appealable if three conditions are met: the order must (1) conclusively resolve the appealed issue, (2) present an important issue that is completely separate from the merits, and (3) be effectively unreviewable in an appeal from a final judgment. As the Fourth Circuit saw things, denials of Feretta motions fail the third requirement. In reaching that conclusion, the court made several interesting points.
First, the Fourth Circuit rejected the defendant’s reliance on appeals in the civil context. A few courts of appeals have held that civil litigants can immediately appeal denials of self-representation via the collateral-order doctrine. The defendant in Sueiro argued that if civil litigants—who do not have a constitutional right to self representation—can immediately appeal, then surely criminal defendants—who have a Sixth Amendment right to self-representation—should be able to appeal, too. But the Fourth Circuit rejected this argument, invoking the proposition that the final-judgment rule is at its strictest in the criminal context. The court accordingly looked only to collateral-order decisions in the criminal context.
Second, the Fourth Circuit concluded that the presumption of prejudice that comes with a Faretta error rendered this issue effectively reviewable after a final judgment. The Supreme Court had mentioned the interplay between presumptive prejudice and the collateral-order doctrine in Flanagan v. United States. And Flanagan had said (albeit in dicta) that post-conviction review of self-representation rights is “fully effective” due to the presumption of prejudice. So defendants whose right to self-representation has been wrongly denied can correct that error on appeal and represent themselves in a second trial.
Finally, the Fourth Circuit distinguished Sell v. United States. That case held that orders forcibly medicating criminal defendants are immediately appealable under the collateral-order doctrine. The defendant in Sueiro invoked Sell to argue that rights implicating the autonomy and dignity of criminal defendants are immediately appealable. But the Fourth Circuit rejected the analogy for two reasons. First, the rights at issue—self-representation and against forced medication—were too different; there is a broader right to avoid forced medication, while self-representation is merely a trial right. And second, Sell did not introduce an “irreparable harm” test to the collateral-order doctrine. Granted, the defendant in Sueiro would face an ongoing and irreparable harm if wrongfully forced to proceed with counsel. But irreparable harm alone is not enough to render a decision effectively unreviewable.
United States v. Sueiro, 2020 WL 97412 (4th Cir. Jan. 9, 2020), available at the Fourth Circuit and Westlaw.
The Third Circuit held that nondisclosure orders for grand-jury subpoenas are immediately appealable
In In re Application of Subpoena 2018R00776, the Third Circuit held that a witness subpoenaed by a grand jury could immediately appeal an accompanying order prohibiting the witness from telling anyone about it.
In appellant in Subpoena 2018R0077 was an electronic service provider. A grand jury subpoenaed the provider, seeking data on one of its customer’s employees, who was the target of the grand jury. Accompanying the subpoenas were nondisclosure orders that prohibited the provider from telling anyone about the data requests. The provider complied with the subpoenas but challenged the constitutionality of the nondisclosure orders, arguing that they violated the First Amendment. The district court rejected this challenge, and the provider appealed.
The Third Circuit held that the nondisclosure orders were immediately appealable via the collateral-order doctrine. The district court’s decision conclusively rejected the provider’s First Amendment challenge. The decision was completely separate from the underlying grand-jury proceedings, concerning only the provider’s rights and not those of the grand-jury target. And the provider would not be able to challenge the orders at any other time, regardless of whether the grand-jury target was prosecuted.
On the merits, the Third Circuit held that the nondisclosure orders survived strict scrutiny; the government’s interest in maintaining grand-jury secrecy was sufficiently strong.
In re Application of Subpoena 2018R00776, 2020 WL 113984 (3d Cir. Jan. 10, 2020), available at the Third Circuit and Westlaw.
The Fifth Circuit on arbitration, admiralty, and the collateral-order doctrine
In Psara Energy, Ltd. v. Advantage Arrow Shipping, L.L.C., the Fifth Circuit held that it lacked jurisdiction to review an decision ordering arbitration and administratively closing a case; the decision was not appealable via the special rules for arbitration appeals, the collateral-order doctrine, or the special rules governing admiralty appeals.
Simplifying a fair bit, Psara involved breach of contract and other claims stemming from a contract to charter a ship. The dispute began as an arbitration in London. Shortly after arbitration commenced, the plaintiff in Psara sought and obtained a maritime attachment against two of the defendants’ vessels in the United States. The owners of the attached vessels argued that the matter should be referred to the London arbitration, and the district court agreed. The district court ordered arbitration, stayed and administratively closed the case, and retained jurisdiction to enforce and arbitration award. The plaintiff then appealed.
The Fifth Circuit rejected all three potential grounds for appellate jurisdiction.
The court first held that the decision was not appealable under the rules governing arbitration appeals. Under 9 U.S.C. § 16(a)(3), parties can appeal “a final decision with respect to arbitration.” In Green Tree Financial Corp.-Alabama v. Randolph, the Supreme Court held that a decision ordering arbitration and dismissing a case is final and appealable. But the the Fifth Circuit and other courts of appeals have held that decisions ordering arbitration and staying a case are not. (I and others have suggested that this distinction requires district courts to stay, not dismiss, after ordering arbitration, but the Supreme Court has avoided deciding that issue.) And an administrative closure is the functional equivalent of a stay; it merely removes a case from a district court’s pending suits for reporting purposes. In Psara, the district court stayed and administratively closed the case. There was accordingly no “final decision with respect to arbitration” under § 16(a)(3).
Second, the Fifth Circuit held that the decision was not an appealable collateral order. That court had previously rejected this argument; § 16 provides the framework for arbitration appeals, so resort to the collateral-order doctrine is unnecessary and improper. Further, the attachments (as opposed to the decision directing arbitration) could not be appealed via the collateral-order doctrine because there was no risk of the security becoming unavailable.
Finally, the Fifth Circuit held that the decision was not appealable via 28 U.S.C. § 1292(a)(3). That section confers jurisdiction over interlocutory decrees “determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.” Orders compelling arbitration do not determine the rights and liabilities of parties. They instead address how those rights and liabilities will be determined.
Psara Energy, Ltd. v. Advantage Arrow Shipping, L.L.C., 2020 WL 104348 (5th Cir. Jan 9, 2020), available at the Fifth Circuit and Westlaw.
The Federal Circuit held that abandonment of an outstanding claim at oral argument saved a premature appeal
In Amgen Inc. v. Amneal Pharmaceuticals LLC, the Federal Circuit held that a premature notice of appeal was saved when a party abandoned the one unresolved claim at oral argument.
Amgen was a patent-infringement suit against four defendants; the district court determined that two defendants infringed the patent while the other two did not. Both the patent holder and the infringing defendants appealed. But at the time of the appeal, the district court had not yet resolved the infringing defendants’ defense and counterclaim that the patent at issue was invalid. Indeed, up through oral argument in the appeal, that matter had still not been resolved.
The appeal was accordingly premature. (The opinion seems to suggest that only the infringing defendants’ appeal was premature, but the patent holder’s appeal was premature, too.) The district court had not yet resolved all claims, so there was no final decision when the parties appealed. But the infringing defendants cured this defect at oral argument by “giv[ing] up” their invalidity defense and counterclaim. That is, the infringing defendants disclaimed any intention to assert that defense and counterclaim, effectively dismissing it with prejudice. The district court’s judgment, combined with the defendants’ disclaimer, rendered the decision final and appealable.
For more on how subsequent events can save premature appeals, see my article Cumulative Finality.
Amgen Inc. v. Amneal Pharmaceuticals LLC, 2020 WL 62012 (Fed. Cir. Jan. 7, 2020), available at the Federal Circuit and Westlaw.
The Eleventh Circuit declined pendent appellate jurisdiction over a plaintiff’s cross-appeal in a qualified-immunity appeal
In Martin v. Howard, the Eleventh Circuit rejected pendent appellate jurisdiction in an interlocutory qualified-immunity appeal over the dismissal of a municipal-liability/Monell claim.
The plaintiff in Martin was a concert and event promoter who tried to put on a show by Yo Gotti in Birmingham, Alabama. Several off-duty police officers provided security for the event. And those officers allegedly prevented the plaintiff from leaving the venue until he paid them (the plaintiff and officers disagreed over who was responsible for the paying them: the plaintiff or the venue). Eventually an on-duty officer arrived and, according to the plaintiff, refused to let the plaintiff leave until he paid the officers. The plaintiff later sued the on-duty officer and the city that employed the officer (among others). As relevant here, the district court denied the on-duty officer’s request for qualified immunity on the plaintiff’s Fourth Amendment unreasonable-seizure claim, and it granted summary judgment to the city on the plaintiff’s municipal-liability/Monell claim. The on-duty officer then appealed the denial of qualified immunity, and the plaintiff cross-appealed the grant of summary judgment for the city on his Monell claim.
Jurisdiction over the on-duty officer’s appeal was straightforward—the officer appealed from the denial of qualified immunity and disputed only whether the district court’s assumed facts made out a clear constitutional violation. That is perfectly proper under Mitchell v. Forsyth and Johnson v. Jones.
The cross-appeal was different. The decision granting summary judgment for the city was not final or appealable, as the plaintiff’s claim against the on-duty officer remained. And the Eleventh Circuit declined to exercise pendent appellate jurisdiction over the plaintiff’s cross-appeal. The court noted that pendent appellate jurisdiction is proper when a normally non-appealable issue is “inextricably intertwined” with an appealable one, or when review of the non-appealable issue is necessary to effectively review the appealable one. The municipal-liability issue met neither requirement:
The question of whether a municipality is liable for a section 1983 claim concerns a determination as to whether “the execution of a government’s policy or custom . . . inflicts [an] injury,” [citing Monell], [and] is entirely separate from our qualified immunity analysis, which questions whether an individual public official violated a plaintiff’s clearly established constitutional rights.
This pendent jurisdiction decision is perfectly correct. The problem is that it’s a little inconsistent with how courts treat pendent jurisdiction when the municipality—not the plaintiff—appeals. Courts sometimes allow municipalities to appeal the denial of summary judgment on a Monell claim alongside an individual defendant’s qualified immunity appeal, particularly when the court has concluded that the individual defendant did not violate the plaintiff’s constitutional rights. With no constitutional violation by the individual officers, there is nothing for the municipality to be liable for. So the court extends jurisdiction to the municipality’s appeal, concludes that it cannot be liable, and remands for the entry of judgment against the plaintiff on the Monell claim. In other words, when municipalities invoke pendent appellate jurisdiction over Monell claims, courts don’t always see that claim as “entirely separate” from the qualified-immunity issues.
This practice of allowing municipalities to appeal is wrong; it’s theoretically, doctrinally, and pragmatically unsound. The practice gets even worse when courts hold plaintiffs to a different standard. Granted, there are grounds for distinguishing the two scenarios. Municipal appeals can be resolved by referring to an issue already addressed in the individual defendant’s appeal: whether a constitutional violation occurred. A plaintiff’s appeal, on the other hand, would likely go beyond issues addressed in the individual defendant’s appeal, such as the municipality’s policies or customs.
Still, this practice of pendent appellate jurisdiction over municipal-liability claims needs to stop. A recent cert petition has raised this issue, and I’ve argued that rulemaking might also be a way to end it.
Martin v. Howard, 2020 WL 115479 (11th Cir. Jan. 10, 2020), available at the Eleventh Circuit and Westlaw.
The Eleventh Circuit held that it could review conditional contempt sanctions alongside non-conditional sanctions
In U.S. Commodity Futures Trading Commission v. Escobio, the Eleventh Circuit held that it could review a contempt order that imposed both conditional and non-conditional sanctions.
The Commodity Futures Trading Commission sought to enforce a $1.5 million judgment against Robert Escobio. But rather than pursue this judgment via the Federal Debt Collection Procedures Act, the Commission asked the district court to enforce the judgment via the court’s contempt power. The district court complied and held Escobio in contempt for failing to pay the judgment. The court ordered him to make a lump-sum payment of $350,000 within 10 days and $10,000/month thereafter. The district court court also said that if Escobio did not pay as ordered, he would be arrested and incarcerated until he complied. Escobio then appealed. And while his appeal was pending, he was twice arrested and incarcerated for not paying as ordered. He was released after both arrests upon paying everything then owed under the district court’s order.
The Eleventh Circuit held that it had jurisdiction to review all aspects of the contempt order. It noted that post-judgment contempt citations are appealable only when there is both a finding of contempt and a non-conditional sanction. Insofar as Escobio had been found in contempt and arrested for not paying as ordered, the court had no questions about jurisdiction. But the Commission argued that the court lacked jurisdiction to review anything relating to the future payments. After all, any sanction for failing to make those payments was conditional on non-payment.
The Eleventh Circuit rejected this argument. For one thing, the non-conditional sanctions already rendered the underlying contempt order appealable. And for another, any future sanctions were not entirely conditional; Escobio was to be arrested upon non-payment, the sanction was set and not modifiable, and actual imposition of this sanction was not necessary for the sanction to be appealable.
On the merits, the Eleventh Circuit held that the district court could not enforce the judgment via its contempt power.
U.S. Commodity Futures Trading Commission v. Escobio, 2020 WL 57331 (11th Cir. Jan. 6, 2020), available at the Eleventh Circuit and Westlaw.
Cert granted in Salinas v. U.S. Railroad Retirement Board
The Supreme Court granted cert in Salinas v. U.S. Railroad Retirement Board. The case asks if the Railroad Retirement Board’s denial of a motion to reopen a prior benefits determination is a “final decision” that the courts of appeals can review. The petitioner and the government had agreed that cert should be granted.
Reply brief filed in CACI Premier Technology, Inc. v. Al Shimari
Finally, the petitioner filed its reply brief in CACI Premier Technology, Inc. v. Al Shimari. The case asks if denials of derivative sovereign immunity are immediately appealable via the collateral-order doctrine.
The petition has been distributed for the Supreme Court’s conference on January 24, 2020.
Reply Brief for Petitioner, CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (Jan. 7, 2019), available at the Supreme Court and Westlaw.