More TRO appeals, jurisdiction to review FISC decisions, due process arguments in immigration appeals, mandamus to agencies, and more.
May 5, 2020
Last week was an eventful one. There was another COVID-19 related appeal from a temporary restraining order, with the Fifth Circuit suggesting that an adversary hearing alone converts a TRO to a preliminary injunction for appeal purposes. The Foreign Intelligence Surveillance Court of Review issued a decision on its jurisdiction to review FISC decisions. The Third Circuit held that it could address Due Process arguments when reviewing immigration decisions involving discretionary relief. Another court of appeals used a writ of mandamus to order an agency to act. Plus more improper qualified-immunity appeals, an immediate appeal in an ancillary discovery proceeding, some Seventh Circuit language on appealing bifurcation orders, and more.
- The Fifth Circuit’s questionable TRO appeal in a COVID-19 case
- The Foreign Intelligence Surveillance Court of Review addressed its limited jurisdiction
- The Third Circuit held that it had jurisdiction to hear an immigration petitioner’s Due Process arguments
- More writs of mandamus requiring agencies to act
- This week’s improper qualified-immunity appeal
- The Ninth Circuit on appealing ancillary discovery proceedings
- The Seventh Circuit on the limits to appealing bifurcation orders
- Quick notes
The Fifth Circuit’s questionable TRO appeal in a COVID-19 case
In Marlowe v. LeBlanc (no slip opinion available), the Fifth Circuit stayed a temporary restraining order until the court could decide an appeal from that order.
The case was brought by a plaintiff detained in a Louisiana prison who sought immediate supervised release due to the spread of COVID-19. The district court did not grant the release. But the court did issue a TRO ordering the Louisiana Department of Public Safety and Corrections to implement certain social-distancing and hygiene practices. The defendants then appealed.
The Fifth Circuit noted that TROs are normally not appealable. But this TRO, the court held, was different. In a footnote, the Fifth Circuit said that “precedent makes clear that when a court holds a hearing on a preliminary motion and the motion is strongly contested, its resulting order constitutes an injunction appealable under 28 U.S.C. § 1291.” In other words, the adversarial hearing transforms the TRO into a preliminary injunction for appeal purposes.
I’m not so sure. The authority cited for this proposition—Sampson v. Murray—dealt with an indefinite TRO, i.e., one that had no set termination date. TROs are supposed to last only 14 to 28 days (10 to 20 days, when Sampson was decided). So courts often treat indefinite TROs as preliminary injunctions for appeal purposes. We saw an example of this recently in another COVID-19 related case when a district court ordered that plaintiffs in immigration detention be indefinitely released. The criteria that Marlowe emphasized—the existence of an adversary hearing—did not seem to be the focus of the Sampson decision. I thus find it a little hard to say that Sampson “makes clear” that this TRO was actually a preliminary injunction.
On the merits, the Fifth Circuit issued a stay pending a decision on the merits.
Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020), available at Westlaw.
The Foreign Intelligence Surveillance Court of Review addressed its limited jurisdiction
In In re Opinions and Orders by FISC Addressing Bulk Collection of Data, the Foreign Intelligence Surveillance Court of Review held that it lacked jurisdiction to review the Foreign Intelligence Surveillance Court’s denial of access to its unredacted opinions.
The case involved several organizations’ attempts to obtain unredacted opinions from the Foreign Intelligence Surveillance Court (often abbreviated as FISC). The FISC rejected the claim, and the organizations filed a petition for review in the Foreign Intelligence Surveillance Court of Review.
The Court of Review held that it lacked jurisdiction over the petition. Congress has authorized that court to review a limited class of cases, such as production or nondisclosure orders under the Foreign Intelligence Surveillance Act and certified questions of law from the FISC. And Congress has allowed only certain parties to petition the Court of Review, including the government and those receiving a production or nondisclosure orders. The organizations seeking access to undredacted FISC opinions did not fall within any of these jurisdictional categories, nor were they among those authorized by Congress to petition the Court of Review.
The Court of Review also held that the statute creating it—50 U.S.C. § 1803(b)—did not give it jurisdiction over the petition for review. That statute gives the Court of Review “jurisdiction to review the denial of any application made under this chapter.” But the “application” referred to in the statute is “an application made by the Government ex parte and in camera for foreign intelligence surveillance.”
The Court of Review went on to reject several other arguments for appellate jurisdiction. It held that the collateral-order doctrine did not allow it to review the FISC decision. The collateral-order doctrine deals with the timing of an appeal, not whether a court has jurisdiction at all. So the organizations could not use the doctrine “to manufacture subject matter jurisdiction where none exists.” The Court of Review also declined to invoke any “ancillary” authority it had to hear the petition for review. And the Court of Review held that mandamus was not appropriate. Mandamus is available only from a court that has appellate jurisdiction; it is not itself a grant of jurisdiction. And the Court of Review had concluded that it lacked subject-matter jurisdiction to review the FISC decision.
In re Opinions and Orders by FISC Addressing Bulk Collection of Data, 2020 WL 2029907 (Apr. 24, 2020), available at the Foreign Intelligence Surveillance Court of Review and Westlaw
The Third Circuit held that it had jurisdiction to hear an immigration petitioner’s Due Process arguments
In Calderon-Rosas v. Attorney General, the Third Circuit held that immigration petitioners can make Due Process arguments when seeking review of decisions involving seeking discretionary relief.
The petitioner in Calderon-Rosas had sought cancellation of removal. But the attorney he hired failed to present key evidence in support of cancellation. The petitioner was ordered removed. He later sought a new hearing, arguing (among other things) ineffective assistance of counsel. The Board of Immigration appeals denied a new hearing, and the petitioner sought review in the Third Circuit.
The government argued that the court of appeals lacked jurisdiction over the case. Appellate jurisdiction in immigration cases is often limited to constitutional issues and questions of law. And, the government contended, the petitioner’s arguments did not fall within that jurisdiction:
[The government argued] that petitioners seeking discretionary relief cannot assert procedural rights under the Due Process Clause in this Court because they lack a protected liberty or property interest in such relief.
Without a protected interest in discretionary relief, the petitioner could not make any constitutional claim over which the Third Circuit would have jurisdiction.
The Third Circuit soundly rejected this argument, stating that it had “long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief.” “‘Congress instructed the Attorney General to establish an asylum procedure,’ and ‘[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.’” Immigration petitioners thus had a right to effective assistance when seeking discretionary relief, a right that “is consistent with bedrock principles of Supreme Court case law.” The Third Circuit recognized that not all courts agree on this matter. But cases holding to the contrary “conflate[]the existence of a statutory entitlement with the fairness of the process by which a petitioner may be deprived of it.” And the contrary position also produced “absurd results:”
At oral argument, for example, the Government went so far as to posit that, so long as an alien seeking only discretionary relief had the opportunity to reasonably present evidence, he would have no cognizable due process claim—and hence, no recourse to the federal courts—even if the [immigration judge] denied that relief ‘based on the flip of a coin.’
This “conception of due process,” the Third Circuit concluded, “is not only inconsistent with our case law but would be anathema to our Founding Fathers.”
On the merits, the Third Circuit held that the petitioner was entitled to a new hearing on his cancellation of removal.
Calderon-Rosas v. Attorney General, 2020 WL 1982207 (3d Cir. Apr. 27, 2020), available at the Third Circuit and Westlaw.
More writs of mandamus requiring agencies to act
For the second week in a row, a court of appeals used mandamus to order a federal agency to act. In In re Public Employees for Environmental Responsibility, the D.C. Circuit issued a writ of mandamus requiring the Federal Aviation Authority and National Park Service to establish rules governing commercial sightseeing flights over national parks. The Air Tour Management Act of 2000 required the agencies to issue rules governing those flights. But after 19 years, it had issued rules for only two parks. This, the D.C. Circuit held, was not timely. The court ordered the agencies to set a schedule for promulgating rules for other parks and stated that it expected the agencies to issue those rules within two years.
In re Public Employees for Environmental Responsibility, 2020 WL 2090085 (D.C. Cir. May 1, 2020), available at the D.C. Circuit and Westlaw.
This week’s improper qualified-immunity appeal
It’s time for the weekly collection of defendants taking improper qualified-immunity appeals. When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But that right is limited. Defendants cannot dispute the facts that the district court took as true in denying summary judgment. They can argue only that those facts do not make out a clearly established violation of federal law. In other words, defendants may immediately appeal the materiality of any fact disputes, but they cannot immediately appeal the genuineness of those disputes.
Defendants nevertheless flout this jurisdictional limit with some frequency. The Fifth Circuit recently dealt with two examples.
Scott v. White (a leftover from last week) involved an excessive-force claim against a police officer who tackled, beat, and Tased the plaintiff. The district court denied immunity, and the officer appealed. On appeal, the officer argued that the district court relied on unsupported allegations and non-record evidence in making its decision. The Fifth Circuit held, however, that it could not address those arguments in a qualified-immunity appeal. The arguments went to the district court’s determinations of evidentiary sufficiency and what facts a reasonable jury could draw from the evidence. And those issues were outside the Fifth Circuit’s appellate jurisdiction.
Goode v. Baggett also involved an excessive-force claim, this one stemming from police officers’ hog-tying someone for 90 minutes, which resulted in that person’s death. The district court determined that several genuine fact issues precluded granting qualified immunity, and the officers appealed. On appeal, the Fifth Circuit stated that it “can’t second-guess the district court’s assessment of the evidence—that is, whether the record could support a finding that certain conduct occurred.” The officers nevertheless disputed the district court’s assessment of the summary judgment record, arguing that the decedent was resisting arrest and that they adequately monitored him. The Fifth Circuit determined that it lacked jurisdiction to address whether the summary-judgment record supported the plaintiff’s version of the facts. And on the facts that the district court took as true, the officers were not entitled to qualified immunity.
Scott v. White, 2020 WL 1983194 (5th Cir. Apr. 24, 2020), available at the Fifth Circuit and Westlaw.
Goode v. Baggett, 2020 WL 1983196 (5th Cir. Apr. 24, 2020), available at the Fifth Circuit and Westlaw.
The Ninth Circuit on appealing ancillary discovery proceedings
In Nypl v. JPMorgan Chase & Co., the Ninth Circuit heard an immediate appeal from an ancillary discovery proceeding.
The plaintiff in Nypl brought a putative class action against several financial institutions in a New York federal court. As part of that case, he subpoenaed a former Wells Fargo employee who lived in California. Wells Fargo successfully moved to quash the subpoena in a California federal court, and the plaintiff appealed.
The Ninth Circuit noted that it had jurisdiction to review the decision to quash the subpoena. Discovery orders are not normally appealable. But ancillary discovery proceedings like this can be different. The proceedings in the California federal court were derivative of the underlying New York proceedings. In quashing the subpoena, the district court in Nypl resolved all of the issues before it. The plaintiff could not obtain review of the California federal court’s decision in an appeal from the ultimate resolution of the proceedings in New York. And because the district court had denied discovery, there was no option for a party to obtain appellate review via the contempt route. Were there to be any appellate review of the decision to quash the subpoena, it had to be immediate.
Nypl v. JPMorgan Chase & Co., 2020 WL 2042498 (9th Cir. Apr. 28, 2020), available at the Ninth Circuit and Westlaw.
The Seventh Circuit on the limits to appealing bifurcation orders
In Siler v. City of Kenosha, the Seventh Circuit seemed to say that litigants cannot appeal bifurcation orders after a final judgment.
Siler arose out of a fatal police shooting. The decedent’s estate and his daughter brought excessive-force claims against both the officer who shot the decedent and the city that employed the officer. The district court bifurcated the defendants’ trials. And before trial began, the district court granted qualified immunity to the officer, concluding that the law was not sufficiently clear. The district court also certified this dismissal for an immediate appeal under Federal Rule of Civil Procedure 54(b), and the plaintiffs appealed.
The Seventh Circuit affirmed the grant of summary judgment. It held, however, that the officer had not violated the constitution, obviating any need to address whether the law was clearly established. And in a footnote, the court said that it lacked jurisdiction to review the district court’s bifurcation decision. “The bifurcation order [was] neither a final judgment that can be appealed, nor an earlier ruling that is ‘brought up’ by the appeal of a final judgment.” According to the court, bifurcation orders “are appealable only by certification and permission under 28 U.S.C. § 1292(b) or if they fall within the ‘collateral order’ doctrine.” (Emphasis the court’s.)
The court’s statement on bifurcation struck me as odd. Granted, a bifurcation order is normally interlocutory and not immediately appealable. And since one of the bifurcated trials (the one against the city) was still pending when the plaintiffs in Siler appealed, I can see the argument that the bifurcation order should not be appealable as part of the Rule 54(b) appeal. But the Seventh Circuit seemed to say that bifurcation orders can never be appealed as part of a traditional, end-of-proceedings appeal from a final judgment. They must instead be appealed via § 1292(b) or the collateral-order doctrine.
Is that right? I can’t see why the bifurcation order would not merge into the final judgment like any other interlocutory decision. Is bifurcation moot after a final judgment? Or is it just that any error in bifurcation is harmless once the separate trials have occurred? I’ve never encountered this issue before, and I haven’t had a chance to look into it yet (I looked only at the cases the court cited, and they don’t seem to support what the Seventh Circuit said). I welcome any thoughts.
Siler v. City of Kenosha, 2020 WL 2059918 (7th Cir. Apr. 29, 2020), available at the Seventh Circuit and Westlaw.
Quick notes
In Miller v. Sawant, the Ninth Circuit held that plaintiffs could appeal the dismissal of claims against one defendant even though the plaintiffs had voluntarily dismissed their claims against another defendant. The Ninth Circuit allows parties to dismiss all claims against one defendant and then appeal the prior resolution of claims against another defendant. As the Ninth Circuit sees it, a Rule 41(a)(1)(i) dismissal makes it as though the voluntarily dismissed defendant was never part of the suit. So after the voluntary dismissal, all that remains are the resolved claims, and there is nothing more for the district court to do but enforce the judgment. That, the Ninth Circuit holds, is a final judgment. And that rule holds even if the defendant was voluntarily dismissed without prejudice.
In Dantzler, Inc. v. Empresas Berríos Inventory and Operations, Inc., the First Circuit addressed a plaintiff’s standing as part of an sovereign-immunity appeal. Denials of sovereign immunity are immediately appealable via the collateral-order doctrine. And normally the scope of those appeals is limited of the issues of sovereign immunity. But the First Circuit determined that the plaintiff’s standing was within the scope of the appeal. Standing goes to a federal court’s subject-matter jurisdiction, and courts must ensure that standing exists at every point in the proceedings.
And in United States v. Edwards, the Seventh Circuit held that an order reducing a defendant’s sentence under the First Step Act was not final because the district court had not yet addressed alterations to supervised release.
Miller v. Sawant, 2020 WL 1987073 (9th Cir. Apr. 27, 2020), available at the Ninth Circuit and Westlaw.
Dantzler, Inc. v. Empresas Berríos Inventory and Operations, Inc., 2020 WL 2097555 (1st Cir. May 1, 2020), available at the First Circuit and Westlaw.
United States v. Edwards, 2020 WL 1986931 (7th Cir. Apr. 27, 2020), available at the Seventh Circuit and Westlaw.