The scope of inter partes patent appeals, abuse-of-discretion review explained, appellate review of temporary restraining orders, and more.
April 28, 2020
Last week, the Supreme Court addressed the scope of review in appeals from inter partes review. Judge Hamilton of the Seventh Circuit gave an excellent explanation of abuse-of-discretion review. More defendants sought (with mixed success) immediate appellate review of temporary restraining orders. Plus a writ of mandamus to the EPA, an improper qualified-immunity appeal, appealing bankruptcy remands, pendent appellate jurisdiction, notices of appeal, and appeals in post-judgment enforcement proceedings.
- The Supreme Court held that appellate courts cannot review the timeliness of petitions to institute inter partes review
- The Seventh Circuit explained abuse-of-discretion review
- The Third Circuit held that a temporary restraining order was effectively a preliminary injunction for appeal purposes
- More decisions on reviewing TROs enjoining COVID-19 related abortion restrictions
- The Ninth Circuit used mandamus to direct the EPA to respond to a petition to end the use of a pesticide
- This week’s improper qualified-immunity appeal
- The Ninth Circuit dismissed a bankruptcy remand
- The Fifth Circuit declined to exercise pendent appellate jurisdiction in an absolute-immunity appeal
- The Third Circuit addressed the order-designation requirement for notices of appeal
- The Third Circuit dismissed an appeal setting the interest rate in judgment-enforcement proceedings
The Supreme Court held that appellate courts cannot review the timeliness of petitions to institute inter partes review
In Thryv, Inc. v. Click-To-Call Technologies, LP, the Supreme Court held that the Federal Circuit lacks jurisdiction to review the Patent and Trademark Office’s decision that a petition to institute inter partes review was timely.
Simplifying (quite) a bit, inter partes review is a proceeding before the Patent Trial and Appeal Board to adjudicate the validity of a patent. Anyone besides the patent owner can petition the Board to institute the review process. And certain requirements must be met for inter parties review to be proper. One of those requirements—found in 35 U.S.C. § 315—is that the the petitioner must seek review within one year of receiving a complaint alleging infringement of the patent in question. The statute governing inter partes review also places limits on appeals: 35 U.S.C. § 314(d) says that “[t]he determination . . . whether to institute an inter partes review under this section shall be final and nonappealable.”
Thryv concerned the scope of § 314(d)’s prohibition on appellate review. Did it bar appellate review of only the Board’s interpretation and application of § 314? After all, subsection (d) says that the decision “to institute inter partes review under this section”—that is, under § 314—is not appealable. Or does § 314(d) bar appellate review of other requirements for instituting inter partes review, such as § 315’s requirement that a petition be filed within one year? Under this latter interpretation, the prohibition on appellate review applies to the entire decision to institute inter partes review, a decision that is made under § 314.
A majority of the Supreme Court went with the latter interpretation—§ 314(d) bars appellate review of, among other things, the timeliness of a petition to institute inter partes review. Justice Gorsuch, joined in large part by Justice Sotomayor, dissented, contending that § 314(d)’s prohibition applied only to appellate review of the interpretation and application of § 314.
For more on Thryv, see Dennis Crouch’s post SCT: Procedural Rules Should Not Unwind the Power of IPR’s to Cancel Bad Patents at Patently-O and John Duffy’s opinion analysis Supreme Court forecloses judicial review that could save “bad patent claims,” while dissent bemoans a “rough day” for judicial power at SCOTUSBlog.
Thryv, Inc. v. Click-To-Call Technologies, LP, 2020 WL 1906544 (Apr. 20, 2020), available at the Supreme Court and Westlaw.
The Seventh Circuit explained abuse-of-discretion review
In Mayle v. State of Illinois, the Seventh Circuit held that a district court was within its discretion in extending the time for filing a notice of appeal. The opinion offers an excellent explanation (and illustration) of what abuse-of-discretion review entails. See my post Judge Hamilton on Abuse-of-Discretion Review for more.
Mayle v. State of Illinois, 2020 WL 1949278 (7th Cir. Apr. 23, 2020), available at the Seventh Circuit and Westlaw.
The Third Circuit held that a temporary restraining order was effectively a preliminary injunction for appeal purposes
In Hope v. Warden, York County Prison, the Third Circuit held that it had jurisdiction to review a temporary restraining order directing the release of detained immigrants due to the COVID-19 pandemic. See my post Appealing Temporary Restraining Orders in COVID-19 Related Cases for more.
Hope v. Warden, York County Prison, 2020 WL 1922372 (3d Cir. Apr. 21, 2020), available at the Third Circuit and Westlaw.
More decisions on reviewing TROs enjoining COVID-19 related abortion restrictions
The last two weeks have seen several attempts (some successful, some not) by states to obtain appellate review of TROs enjoining COVID-19 related abortion restrictions. This week was no different. In In re Abbott, the Fifth Circuit again used mandamus to vacate a TRO concerning Texas’s COVID-19 related abortion restrictions. In another case—Southwestern Women’s Surgery Center v. Abbott—that court also dismissed a direct appeal from the same TRO, holding that the TRO was not effectively a preliminary injunction. And in In re Rutledge, the Eighth Circuit issued a writ of mandamus to vacate the TRO concerning Arkansas’s COVID-19 related abortion restrictions.
In re Abbott, 2020 WL 1911216 (5th Cir. Apr. 20, 2020), available at the Fifth Circuit and Westlaw.
Southwestern Women’s Surgery Center v. Abbott, 2020 WL 1918714 (5th Cir. Apr. 20, 2020), available at the Fifth Circuit and Westlaw.
In re Rutledge, 2020 WL 1933122 (8th Cir. Apr. 22, 2020), available at the Eighth Circuit and Westlaw.
The Ninth Circuit used mandamus to direct the EPA to respond to a petition to end the use of a pesticide
In other mandamus news, in In re Natural Resources Defense Council, Inc., the Ninth Circuit issued a writ of mandamus directing the Environmental Protection Agency to respond to the Natural Resources Defense Council’s petition that the Agency end the use of a particular pesticide. The Agency had unreasonably delayed in responding to the petition—delaying more than ten years—and it had “repeatedly taken the action of NRDC or a court to prompt any movement by the EPA.”
In re Natural Resources Defense Council, Inc., 2020 WL 1933135 (9th Cir. Apr. 22, 2020), available at the Ninth Circuit and Westlaw.
This week’s improper qualified-immunity appeal
It seems like we can’t go a week without an improper attempt to appeal the denial of qualified immunity. In Fuller v. Metropolitan Atlanta Rapid Transit Authority, the Eleventh Circuit dismissed a qualified-immunity appeal because the defendants disputed the facts that the district court had taken as true in denying immunity.
The plaintiff in Fuller had been stopped by a Transit Authority officer who suspected that the plaintiff had not paid the fare. The plaintiff began texting his father, telling his father that he would be late, when another officer seized the plaintiff from behind and started to take the plaintiff to the ground. The officer hesitated, however, and placed the plaintiff back on his feet. The first officer then Tased the plaintiff. The officers arrested the plaintiff and, while escorting him to the staff room, threatened to Tase him again. Surveillance videos showed that the plaintiff never acted aggressively.
The plaintiff later sued the officers and the Transit Authority for excessive force. When the defendants sought summary judgment, the district court held that they were not entitled to qualified immunity. The defendants then appealed.
On appeal, the Eleventh Circuit determined that the defendants’ “arguments merely raise[d] questions of evidence sufficiency; they do not challenge the district court’s legal conclusions.” The defendants argued that the plaintiff had not complied with commands and was under arrest, and that they Tased the plaintiff after he had physically resisted arrest. But the plaintiff had said “that he never failed to comply with any commands, that the officers never told him he was under arrest during the use of force, that he was never antagonistic toward officers, and that he did not resist arrest.” At this stage in the proceedings, the plaintiff’s version of the facts were assumed to be true. And under those facts, the officers violated clearly established law.
Fuller v. Metropolitan Atlanta Rapid Transit Authority, 2020 WL 1933936 (11th Cir. Apr. 22, 2020), available at the Eleventh Circuit and Westlaw.
The Ninth Circuit dismissed a bankruptcy remand
In In re Brace, the Ninth Circuit dismissed an an appeal from a bankruptcy remand.
The bankruptcy court in Brace had held the debtor in contempt, and the debtor appealed. The Bankruptcy Appellate Panel vacated the contempt and remanded for additional proceedings. Specifically, the bankruptcy court was to make “additional findings and explain its conclusions regarding the basis for and amount of the $5,000 sanction award and to set forth the exact steps [the debtor] must take to purge his contempt and avoid incarceration.” The debtor then appealed this remand to the Ninth Circuit.
The Ninth Circuit explained that a Bankruptcy Appellate Panel decision remanding a dispute to the bankruptcy court for further factual findings is normally not final or appealable. The court departs from this rule only when the remand is for a purely mechanical or computational task. (This appears to be a specific application of the more general ministerial/technical exception to the final-judgment rule. See pages 400–402 of this article for more on that exception.) That wasn’t the case in Brace—much remained to be done in the district court. So the Ninth Circuit lacked jurisdiction to review the Panel decision.
In re Brace, 2020 WL 1910736 (9th Cir. Apr. 20, 2020), available at the Ninth Circuit and Westlaw.
The Fifth Circuit declined to exercise pendent appellate jurisdiction in an absolute-immunity appeal
In Singleton v. Cannizzaro, the Fifth Circuit affirmed the denial of absolute immunity for prosecutors who allegedly used fake subpoenas to pressure victims and witnesses into speaking with them. The court also dismissed the appeal insofar as the defendants sought to appeal other issues. Defendants can appeal the denial of absolute immunity via the collateral-order doctrine. But the other issues that the defendants raised—which involved the merits of the plaintiffs’ claims—were not essential to resolving the absolute-immunity issues. Pendent appellate jurisdiction was thus not warranted.
Singleton v. Cannizzaro, 2020 WL 1922377 (5th Cir. Apr. 21, 2020), available at the Fifth Circuit and Westlaw.
The Third Circuit addressed the order-designation requirement for notices of appeal
In Kagalwalla v. Downing, the Third Circuit held that a plaintiff’s notice of appeal, along with other documents, was sufficient to appeal all of the district court’s decisions. The district court had denied the plaintiff’s motion to reopen the case and, over the next two or so weeks, denied two motions for reconsideration. The plaintiff’s notice of appeal specified only the second denial of reconsideration. But “the orders denying reconsideration [were] connected to the denial of the motion to reopen, an intent to appeal may be inferred by the fact that [the plaintiff] attached to his notice of appeal the orders denying his motion to reopen and his second motion for reconsideration, and there is no prejudice to the Appellees as they have all addressed the denials of reopening and reconsideration in their briefs.”
Kagalwalla v. Downing, 2020 WL 1922916 (3d Cir. Apr. 21, 2020), available at the Third Circuit and Westlaw.
The Third Circuit dismissed an appeal setting the interest rate in judgment-enforcement proceedings
In Sovereign Bank v. Remi Capital, Inc., the Third Circuit held that a post-judgment decision setting the interest rate on the balance of a judgment was not a final decision. The parties in Sovereign Bank had agreed to a consent judgment, and the judgment debtor eventually moved to declare that judgment satisfied. The district court denied that motion without prejudice and set the post-judgment interest rate at the federal rate: 0.26%. The judgment creditor then tried to then appeal, arguing that the interest rate should be that specified in the contracts that were the subject of the parties’ dispute. But the Third Circuit held that the district court’s decision was not final or appealable. The district court had denied the motion to declare the judgment satisfied without prejudice and said that further discovery on amounts paid would proceed. In other words, the district court envisioned future proceedings in that court. And that kept the decision from being a final one.
Sovereign Bank v. Remi Capital, Inc., 2020 WL 1951664 (3d Cir. Apr. 23, 2020), available at the Third Circuit and Westlaw.