Improper qualified-immunity appeals, sentencing, untimely notices, patent appeals, and more.
February 10, 2020
Last week saw several appellate-jurisdiction decisions of note. Defendants in two civil rights suits took wholly improper appeals, which have become a staple of qualified immunity. Two circuits addressed the scope of their jurisdiction to review sentencing appeals. The Ninth Circuit avoided wading into questions about the Federal Circuit’s exclusive jurisdiction over patent appeals. Plus motions to proceed anonymously, untimely notices of appeal, and reconsideration of remands.
- The Ninth Circuit rejected an attempt to challenge the facts in a qualified-immunity appeal
- So did the Fourth Circuit
- The Second Circuit held that an order denying a request to proceed anonymously is immediately appealable
- The Sixth Circuit held it lacked jurisdiction to review the denial of a request to terminate supervised release
- The Tenth Circuit explained why it can review sentence-factor manipulation arguments
- The Third Circuit held that the re-entry of a judgment did not save a late notice of appeal
- The Sixth Circuit held that it lacks jurisdiction to review an order denying reconsideration of a remand order
- The Ninth Circuit decided an appeal that touched on a patent
The Ninth Circuit rejected an attempt to challenge the facts in a qualified-immunity appeal
In Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. The case illustrates the troubling practice of defendant who file jurisdictionally improper appeals that add cost and delay to civil rights litigation.
I did a full write up on Orn, the larger problem of improper qualified-immunity appeals, and a possible solution to that problem: Another Unnecessary Qualified-Immunity Appeal.
Orn v. City of Tacoma, 2020 WL 524787 (9th Cir. Feb. 3, 2020), available at the Ninth Circuit and Westlaw.
So did the Fourth Circuit
Similarly, in Robinson v. Miller, the Fourth Circuit rejected the defendants’ attempts to dispute the facts for purposes of a qualified-immunity appeal.
Robinson involved claims that the plaintiff was arrested without probable cause. The plaintiff worked at a Walmart where some employees were stealing iPods, and he was twice arrested in connection with the scheme. He later sued three police officers for arresting him without probable cause. On the officers’ motion for summary judgment, the district court determined that factual issues precluded qualified immunity. Specifically, genuine disputes existed as to what information the officers had when they arrested the plaintiff. The parties agreed that the officers had viewed a surveillance tape in which the plaintiff was standing near other employees as they were stealing iPods. But, the district court concluded, simply being near others who were committing a crime did not provide probable cause to arrest. A jury would have to decide what other information the officers knew to determine whether probable cause existed.
The officers then appealed the denial of qualified immunity. And like the defendants in Orn, the officers in Robinson based their arguments on their own view of what facts a reasonable jury could find. Specifically, the officers argued that they were aware of other evidence that, combined with the video, provided probable cause to arrest. But as the Fourth Circuit explained, that matter was outside the limited scope of jurisdiction in an interlocutory qualified-immunity appeal:
In this interlocutory posture . . . , our review is limited: We may address only purely legal questions, such as whether uncontroverted facts show that probable cause existed to make an arrest or whether the federal right allegedly infringed was clearly established. What we may not do is review a district court’s determination that the pretrial record sets forth a ‘genuine’ issue of fact for trial.
In other words, the Fourth Circuit had to take the facts as the district court gave them and, viewing those facts in the light most favorable to the plaintiff, determine if the officers were entitled to qualified immunity.
Once the factual arguments were disposed of, the rest of the appeal was straightforward. If the officers had viewed only the video before arresting the plaintiff, they lacked probable cause. Indeed, the officers conceded as much at oral argument, and that more or less resolved the appeal:
Because of our limited jurisdiction on this interlocutory appeal, that essentially ends the matter. The defendants do not dispute that the video alone is insufficient to establish their qualified immunity, and instead rely on the video in combination with other evidence. But as we have explained, we have no jurisdiction, in this interlocutory posture, to review the district court’s determination that the pretrial record generates genuine disputes of fact as to whether any of the officers had knowledge of the any other relevant evidence before the plaintiff’s arrests.
(Cleaned up.) The Fourth Circuit accordingly remanded the case for trial.
Robinson v. Miller, 2020 WL 584106 (4th Cir. Feb. 6, 2020), available at the Fourth Circuit and Westlaw.
The Second Circuit held that an order denying a request to proceed anonymously is immediately appealable
In United States v. Pilcher, the Second Circuit held that a habeas petitioner could immediately appeal the denial of his motion to proceed anonymously.
The petitioner in Pilcher filed a § 2255 motion to challenge the terms of his supervised release and the conditions imposed on him due to his registration as a sex offender. He filed the motion under seal and asked the district court to allow him to proceed anonymously. The district court denied the request; the petitioner’s conviction was public, his fear of retaliation was speculative, and his concern over his marriage was insufficient to overcome the public interest in open court proceedings. The petitioner then filed an immediate appeal with the Second Circuit.
The Second Circuit joined several other circuits in holding that the denial of a motion to proceed anonymously is immediately appealable under the collateral-order doctrine. The analysis was brief:
The district court’s decision here conclusively determined the issue of whether [the petitioner] could proceed under a pseudonym; that issue is completely separate from the merits of his § 2255 motion; and it will be effectively unreviewable on appeal from final judgment on his § 2255 motion.
On the merits of the petitioner’s request to proceed anonymously, the Second Circuit affirmed the denial.
United States v. Pilcher, 2020 WL 573384 (2d Cir. Feb. 6, 2020), available at the Second Circuit and Westlaw.
The Sixth Circuit held it lacked jurisdiction to review the denial of a request to terminate supervised release
In United States v. Marshall, the Sixth Circuit held that it could not review a district court decision that refused to terminate the defendant’s supervised release ahead of schedule.
The defendant in Marshall had been sentenced to about 10 years’ imprisonment followed by six years of supervised release. Supervised release started off rough, with the defendant moving to another state without permission and thereby violating the terms of his release. A district court briefly revoked the defendant’s release as punishment and then imposed another five years of supervised release to run concurrent with the existing six years. But about a year later, the probation office recommended an early termination of supervised release. The defendant then asked the district court—without opposition from the government—to end the supervised release. But the district court denied that request, noting that the defendant had served only a fraction of his supervised-release term and had once violated the terms of that release. The defendant then appealed.
The Sixth Circuit held that neither 18 U.S.C. § 3742 nor 28 U.S.C. § 1291 gave it jurisdiction to review the district court’s decision.
Section 3742 limits appeals of criminal sentences to four errors: (1) the sentence violated the law, (2) the sentence was due to a guidelines error, (3) the sentence exceeded the guidelines-recommended range, and (4) there was no guideline for the offense and the sentence is “plainly unreasonable.” The Marshall defendant’s appeal did not fit into any of these categories because he was not appealing the imposition of his sentence. The defendant had not filed a notice of appeal within 14 days of its imposition (or re-imposition, after the defendant violated the terms of his release). And the district court’s refusal to modify the sentence by terminating supervised release was not itself a new sentence that the defendant could appeal.
Section 1291 also did not provide jurisdiction over the appeal. Congress intended that appeals of sentences and convictions go through § 3742, not § 1291. Granted, a few court of appeals decisions had used § 1291 to review appeals like Marshall. But the Sixth Circuit rejected those decisions as unpublished, unexplained, or unpersuasive. And the court read § 3742 to imply that § 1291 does not fill in § 3742’s gaps and allow appeals of any decision not mentioned in that statute.
United States v. Marshall, 2020 WL 548708 (6th Cir. Feb. 4, 2020), available at the Sixth Circuit and Westlaw.
The Tenth Circuit explained why it can review sentence-factor manipulation arguments
In another sentencing appeal—United States v. Krueger—the Tenth Circuit held that it could review whether the government had engaged in “sentence-factor manipulation.”
The defendant in Krueger pleaded guilty to two counts of being a felon in possession of a firearm. A confidential informant had told the ATF that the defendant was looking to sell several firearms. An ATF agent eventually purchased a total six firearms from the defendant in two separate transactions. Before sentencing, the Probation Office recommended a sentence enhancement due to the characteristics of the firearms (two of them were sawed-off shotguns, and another had an obliterated serial number). The defendant objected to this enhancement. He argued that he neither supplied nor modified the firearms, instead acting merely acted as a middleman for the confidential informant. The district court rejected this argument and imposed a sentence of 120 months’ imprisonment. The defendant then appealed, arguing (among other things) that application of the enhancement amounted to improper sentence-factor manipulation.
On appeal, the government argued that the court lacked jurisdiction to review the defendant’s sentence-factor-manipulation argument. It characterized the argument as one seeking review of the district court’s discretionary refusal to depart downwards from the guidelines range. Congress has not empowered the courts of appeals to review that discretionary decision.
The Tenth Circuit agreed with the government that the court lacked jurisdiction to review the denial of a discretionary downward department. But the Tenth Circuit also determined that the government had mischaracterized the issue in Krueger. The defendant was not merely seeking review of a possible downward departure but was instead arguing that the government had engaged in conduct that rendered his sentence unlawful. As just discussed, § 3742 limits appeals of criminal sentences to four categories of errors, one of which is that the sentence was imposed in violation of law. And sentence-factor manipulation results in a sentence that is imposed in violation of law. Sentence-factor manipulation occurs when the government unnecessarily continues its undercover operation after it had evidence to convict, thereby increasing the defendant’s ultimate sentence. That is, the government continued an investigation for the sole purpose of increasing punishment. The Tenth Circuit has held that sentence-factor manipulation is a variation on entrapment’s outrageous-conduct defense, which is itself grounded in due process. And a sentence that violates due process is a sentence imposed in violation of law. So the court had jurisdiction to review the argument.
On the merits, the Tenth Circuit affirmed the defendant’s sentence.
United States v. Krueger, 2020 WL 564797 (10th Cir. Feb. 5, 2020), available at the Tenth Circuit and Westlaw.
The Third Circuit held that the re-entry of a judgment did not save a late notice of appeal
In United States v. Jackson, the Third Circuit dismissed as untimely a pro se litigant’s attempt to appeal the decision in his § 2255 petition.
The time line in Jackson is a bit complicated, but this series of events led to the untimely appeal. The petitioner was convicted of conspiracy to distribute narcotics and later petitioned the district court to vacate, set aside, or correct his sentence under § 2255. A magistrate judge recommended denying that petition. The petitioner (who was incarcerated at the time) submitted timely objections to the recommendation. But the district court did not receive them until after they were due. So before receiving the objections, the district court adopted the magistrate judge’s recommendation and denied the § 2255 petition. About 75 days later, the petitioner requested a certificate of appealability. And a few months after that, the district court finally responded to the petitioner’s timely filed but late-received objections and again adopted the magistrate judge’s recommendation.
The Third Circuit held that neither the objection to the magistrate judge’s recommendation nor the request for a certificate of appealability made the appeal timely. The district court’s decision was final once it denied the § 2255 petition, and the petitioner had 60 days to appeal. The timely filed but late-received objections to the magistrate judge’s report and recommendation did not toll that deadline. The court refused to treat those objections as Rule 59(e) motion that might have tolled the appeal deadline. Rule 59(e) motions challenge a judgment, while objections respond to a recommendation. The objections were thus too different from a Rule 59(e) motion to make that treatment plausible. And treating objections to a magistrate judge’s report and recommendation as a challenge to a judgment would imply that a magistrate judge could enter a final judgment.
The Third Circuit also held that the petition for a certificate of appealability could not be treated as a premature notice of appeal that was saved by the district court’s second entry of the judgment. The initial judgment was a final and appealable decision. The district court’s re-entering that judgment did not change that. So even if the court treated the petition for a certificate of appealability as a notice of appeal, it was still late.
United States v. Jackson, 2020 WL 550731 (3d Cir. Feb. 4, 2020), available at the Third Circuit and Westlaw.
The Sixth Circuit held that it lacks jurisdiction to review an order denying reconsideration of a remand order
In Bank of New York Mellon v. Ackerman, the Sixth Circuit held that 28 U.S.C. § 1447(d) deprived it of jurisdiction to review a district court order denying reconsideration of a remand order. Section 1447(d) generally strips the courts of appeals of jurisdiction to review district court orders that remand a case to state court. The Sixth Circuit noted that permitting appeals from denials of reconsideration would improperly circumvent that statute.
Bank of New York Mellon v. Ackerman, 2020 WL 582583 (6th Cir. Feb. 6, 2020), available at the Sixth Circuit and Westlaw.
The Ninth Circuit decided an appeal that touched on a patent
In Westlake Services, LLC v. Credit Acceptance Corp., the Ninth Circuit concluded that it had jurisdiction to hear an appeal that involved an invalid patent.
The plaintiff in Westlake Services had brought a Walker Process claim, alleging that the defendant had violated federal antitrust laws when the it tried to enforce an invalid patent. The district court dismissed the suit, and the plaintiff appealed to the Ninth Circuit. It was not immediately clear, however, that the Ninth Circuit was the appropriate appellate venue. The Federal Circuit has exclusive jurisdiction over appeals when patent law creates the cause of action or the case depends on a substantial question of patent law. But the exact contours of this exclusive jurisdiction are not settled.
The Ninth Circuit concluded that it did not need to address the uncertainties in exclusive patent jurisdiction. The plaintiff’s claim did not depend on a substantial question of patent law, as the patent at issue had already been declared invalid. There were also no doctrinal patent questions for the Ninth Circuit to resolve. The appeal instead presented only case-specific, fact-intensive issues relevant only to the two parties. The court’s decision would accordingly “have no practical effect on the patent at issue nor will it impact the development of federal patent law.” The Ninth Circuit accordingly heard the appeal.
Westlake Services, LLC v. Credit Acceptance Corp., 2020 WL 569907 (9th Cir. Feb. 5, 2020), available at the Ninth Circuit and Westlaw.