The Week in Federal Appellate Jurisdiction: February 23–29, 2020

Last week was eventful. The Supreme Court held that defendants who ask for a particular sentence do not need to object after sentencing to preserve sentence-length issues for appeal. The Court also denied cert in a case involving the scope of interlocutory qualified-immunity appeals. Speaking of qualified-immunity appeals, two courts rejected defendants’ improper attempts to challenge the facts the district court took as true for the purposes of denying qualified immunity. Another court remanded a qualified-immunity appeal for the district court to explain its denial of immunity. Plus administrative remands, arbitration, and declining to vacate interlocutory orders when a case becomes moot.

• The Supreme Court decided Holguin-Hernandez v. United States
• Cert denied in Taffe v. Wengert
• The First Circuit on appealing administrative remands
• The Seventh Circuit dismissed an attempted appeal from a decision ordering arbitration
• More dismissals of fact-based qualified-immunity appeals
• The Ninth Circuit remanded a qualified-immunity appeal for the district court to explain its reasoning
• More moot preliminary-injunction appeals and vacating interlocutory orders

The Supreme Court decided Holguin-Hernandez v. United States

In Holguin-Hernandez v. United States, the Supreme Court held that asking for a particular sentence before sentencing is enough to preserve a sentence-length error for appeal. Proposing the shorter sentence puts the parties and the district court on notice of the defendant’s argument. Defendants thus do not need to object to that later-imposed, longer sentence to avoid plain error review. Requiring a subsequent objection serves no purpose and results in an unnecessarily high bar for appellate review of sentencing.

See full coverage of the decision here: Holguin-Hernandez: No Need to Re-Raise Sentence-Length Objections.

Holguin-Hernandez v. United States, 2020 WL 908880 (Feb. 26, 2020), available at the Supreme Court and Westlaw.

Cert denied in Taffe v. Wengert

The Supreme Court denied cert in Taffe v. Wengert. I’ve been following the case for a while, as it raised two qualified-immunity issues I discuss frequently on this site. The first involved the extent to which appellate courts can review the facts that a district court takes as true in denying qualified immunity at the summary-judgment stage. The second involved the extent to which municipal defendants can piggyback on individual defendants’ qualified-immunity appeals via pendent appellate jurisdiction. Both issues are in need of attention. And if the Supreme Court won’t address them, the Rules Committee might need to.

The First Circuit on appealing administrative remands

In Littlefield v. Mashpee Wampanoag Indian Tribe, the First Circuit held that it had jurisdiction to review a district court order reversing a decision of the the Bureau of Indian Affairs. The case presents an interesting variation on the administrative-remand rule. A Massachusetts district court reversed a Bureau decision and remanded for further proceedings. Normally that decision would not have been appealable until after those proceedings had ended. But the outcome of those proceedings on remand was subsequently challenged in a different district court. This set of circumstances gave the Massachusetts district court’s decision sufficient finality to be appealable.

See full coverage of the decision—including a primer on the administrative-remand rule—here: Pragmatic Balancing & Appealing Administrative Remands.

Littlefield v. Mashpee Wampanoag Indian Tribe, 2020 WL 948895 (10th Cir. Feb. 27, 2020), available at the First Circuit and Westlaw.

The Seventh Circuit dismissed an attempted appeal from a decision ordering arbitration

In INTL FCStone Financial Inc. v. Jacobson, the Seventh Circuit held that it lacked jurisdiction to review a district court decision ordering arbitration and staying further proceedings.

INTL FCStone involved a dispute between investors and their clearing firm. Volatility in the natural gas market left the investors’ accounts depleted, with some going into the negative. Afterwards, when the firm sought to collect their debts, the investors alleged that the firm had violated the Commodity Exchange Act. The parties agreed that their dispute should go to arbitration. But they disagreed on the forum. The investors wanted to go before the Financial Industry Regulatory Authority, while the firm wanted to use the National Futures Association. The district court sided with the clearing firm and ordered arbitration to proceed before the National Futures Association. The investors then filed an appeal, and the district court stayed further proceedings.

The Seventh Circuit held that the district court’s decision was neither an appealable injunction nor a final decision. The district court did not “effectively enjoin” arbitration before FINRA. It instead ordered arbitration to proceed, albeit in a forum other than the one that the investors preferred. That was a pro-arbitration decision—one that directed arbitration to proceed—which is generally not appealable. And there was no final decision. The district court left the suit open to resolve future issues, such as any need for a permanent injunction.

INTL FCStone Financial Inc. v. Jacobson, 2020 WL 881270 (7th Cir. Feb. 24, 2020), available at the Seventh Circuit and Westlaw.

More dismissals of fact-based qualified-immunity appeals

This week saw at least two more improper, fact-based qualified-immunity appeals. When a district court denies qualified immunity at summary judgment, defendants have a limited right to appeal. They generally must take as given the facts that the district court assumed were true when denying qualified immunity. The defendants can argue only that those facts don’t make out a clear constitutional violation. Yet defendants regularly flout these limits and take improper interlocutory appeals, adding difficulty, expense, and delay to civil rights litigation.

In Livingston v. Kehagias, for example, the Fourth Circuit dismissed most of the issues raised in a qualified-immunity appeal because the defendants’ arguments disputed the facts that the district court had taken as true.

Livingston involved several Fourth and Fifth Amendment claims against police officers that alleged a variety of misconduct, including “warrantless, unlawful and sometimes forcible or middle-of-the-night home entries; unlawful seizures and arrests, frequently accompanied by unprovoked excessive force; and, in one case, the unjustified use of deadly force.” The district court denied the officers’ request for qualified immunity. It explained that the parties genuinely disputed much of what happened. And under the plaintiffs’ version of the facts the officers violated clearly established law. The officers then appealed.

The Fourth Circuit dismissed much of the appeal. It noted that the jurisdictional limits on qualified-immunity appeals meant that it “may not consider, in this posture, any argument that the district court misapprehended the record, finding genuine issues of fact where none exist.” The defendants nevertheless disputed several of the facts that the district court took as true in denying qualified immunity. For example, in one of the plaintiffs’ unlawful entry and arrest claims, the parties disputed whether an officer was struck in the foot by a closing door (which the officer claimed was an assault that provided probable cause to enter the home and arrest its occupant) or kicked the door open as the occupants were closing it. And in a deadly force claim, the parties disputed whether a suspect had taken an officer’s Taser and used it against an officer; the officer who shot the suspect said that the suspect had done so, while other witnesses said that the suspect hadn’t. The district court concluded that these and other fact issues were genuinely disputed. The officers challenged that conclusion on appeal. But the court of appeals lacked jurisdiction to address that challenge (and others).

Similarly, in Martin v. Wentz, the Seventh Circuit dismissed a qualified-immunity appeal because the defendants’ arguments depended entirely on their own version of the facts.

The plaintiff in Martin alleged that the defendant police officers used excessive force in arresting him. In an affidavit, the plaintiff swore that the officers beat and Tased him while he was compliant and not resisting. When the officers sought summary judgment on qualified immunity, the district court concluded that genuine issues of fact existed as to whether the plaintiff was resisting and what force was used. The district court accordingly denied the officers’ request for qualified immunity. The officers then tried to appeal.

On appeal, the officers’ arguments depended entirely on their own version of the facts—that the plaintiff was resisting, and that they neither beat nor Tased him. In doing so, the defendants failed to take as true the facts that the district court assumed. The Seventh Circuit accordingly held that it lacked jurisdiction over the appeal. And the court suggested that the defendants should have known that the appeal was improper. The court noted that it has “repeatedly warned that an interlocutory appeal will be dismissed if the argument for qualified immunity is dependent upon disputed facts.” The court also cited its decision in Gutierrez v. Kermon, in which the Seventh Circuit said that its “cases have given fair warning” of dismissal when defendants dispute the facts.

Gutierrez made that point almost seven years ago. But dismissal does not seem to be enough to deter these improper appeals. Perhaps it’s time for courts to start sanctioning defendants who ignore the jurisdictional limits on qualified-immunity appeals.

Livingston v. Kehagias, 2020 WL 898092 (4th Cir. Feb. 25, 2020), available at the Fourth Circuit and Westlaw.

Martin v. Wentz, 2020 WL 883374 (7th Cir. Feb. 24, 2020), available at the Seventh Circuit and Westlaw.

The Ninth Circuit remanded a qualified-immunity appeal for the district court to explain its reasoning

In Tobias v. East, the Ninth Circuit vacated the denial of qualified immunity and remanded for the district court to specify why immunity was not warranted. Tobias involved a number of defendants, and the district court did not specifically mention one of them in denying qualified immunity on several of the plaintiff’s claims. The Ninth Circuit noted that it “cannot adequately assess [its] jurisdiction without a clear understanding of the district court’s basis for denying qualified immunity.” The court of appeals thus needed to know why the district denied qualified immunity to this particular defendant. So the court vacated the district court’s decision and remanded for an explanation.

Johnson v. Jones provides an exception to the general ban on reviewing the summary-judgment record in a qualified-immunity appeal: when a district court does not specify the factual basis for denying qualified immunity, the court of appeals can review the summary-judgment record for itself. But several courts have remanded in situations like Tobias rather than conduct their own record review. The Third Circuit even has a rule requiring explained denials of qualified immunity, and it will remand whenever the district court’s explanation is insufficient. These practices of obtaining an explanation are good—they keep the courts of appeals within their limited jurisdiction in qualified-immunity appeals. And they streamline those appeals by focusing the appellate court on the more abstract legal issues: under the facts taken as true by the district court, did the defendant violate the plaintiff’s clearly established rights?

Tobias v. East, 2020 WL 901404 (9th Cir. Feb. 25, 2020), available at the Ninth Circuit and Westlaw.

More moot preliminary-injunction appeals and vacating interlocutory orders

Last week, the Eleventh Circuit held that it did not need to vacate a district court’s interlocutory orders when the case became moot on interlocutory appeal. The Sixth Circuit reached the same conclusion this week in Radiant Global Logistics, Inc. v. Furstenau. The case involved an employee who left one employer to join a competitor. The district court issued a preliminary injunction that prohibited the employee from contacting the former employer’s customers and business partners for six months. The employee appealed under 28 U.S.C. § 1292(a)(1). But by the time the appeal was argued, the six-month period had long since expired. And the court of appeals could do nothing to turn back the clock on the injunction. The Sixth Circuit accordingly dismissed the appeal as moot. The court of appeals also declined to vacate the district court’s preliminary-injunction order, as that order had no continuing effects.

Radiant Global Logistics, Inc. v. Furstenau, 2020 WL 897403 (6th Cir. Feb. 25, 2020), available at the Sixth Circuit and Westlaw.