The Week in Federal Appellate Jurisdiction: May 24–30, 2020

Last week was eventful. The Fourth Circuit joined the recent chorus of opinions addressing appellate jurisdiction when parties dismiss some claims without prejudice. The Ninth Circuit addressed the scope of remand appeals under § 1447(d), adding a little more interest to the recent cert petition on the issue. Another court held that the denial of a COVID-19 related temporary restraining order was immediately appealable. And the Sixth Circuit issued a series of decisions on appeals from the denial of First Step Act relief. Plus an improper qualified-immunity appeal and cumulative finality in the criminal context.

• The Fourth Circuit addressed jurisdiction over stipulated dismissals
• The Ninth Circuit questioned—but affirmed—the narrow scope of § 1447(d) appeals
• Another COVID-19 related TRO appeal
• The Sixth Circuit issued three decisions touching on the scope of review from denials of First Step Act relief
• The Sixth Circuit soundly dismissed a qualified-immunity appeal insofar as it disputed the facts
• The Eleventh Circuit addressed cumulative finality in a criminal appeal

The Fourth Circuit addressed jurisdiction over stipulated dismissals

In Affinity Living Group, LLC v. StarStone Specialty Insurance Co., a divided Fourth Circuit held that it had appellate jurisdiction despite the parties’ stipulating to dismiss some claims without prejudice. The district court had issued a decision that necessarily—though not technically—resolved all of the claims, including the voluntarily dismissed ones. The decision dismissed two of the plaintiff’s claims. And its reasoning necessarily decided the two others. That is, the district court’s dismissal of the two claims “rendered legally deficient” the remaining claims. So even though the district court never formally dismissed the remaining claims, their dismissal was inevitable. The parties thus saved everyone some time by stipulating to their dismissal.

The opinion nicely illustrates what the Supreme Court should have said in Microsoft Corp. v. Baker. For a full discussion of the decision, see my post Appealing When a Case Is Legally (but Not Actually) Over.

Affinity Living Group, LLC v. StarStone Specialty Insurance Co., 2020 WL 2630845 (4th Cir. May 26, 2020), available at the Fourth Circuit and Westlaw.

The Ninth Circuit questioned—but affirmed—the narrow scope of § 1447(d) appeals

In County of San Mateo v. Chevron Corp., the Ninth Circuit held that energy companies could not remove several climate-change suits to federal court via 28 U.S.C. § 1442, the federal-officer removal statute. The court also reaffirmed the narrow scope of remand appeals under 28 U.S.C. § 1447(d). The Ninth Circuit held in 2006 that the scope of those appeals is limited to the express exceptions in § 1447(d); the court lacks jurisdiction to review any other proffered grounds for removal. San Mateo saw no reason to deviate from that holding.

The Fourth Circuit recently reached the same conclusion as San Mateo. But a circuit split exists on this issue. The San Mateo opinion acknowledged this split and expressed some receptiveness to the other side. And a recent cert petition from the Fourth Circuit’s decision asks the Supreme Court to resolve the matter.

For more on San Mateo, see my post The Ninth Circuit on the Scope of Remand Appeals.

County of San Mateo v. Chevron Corp., 2020 WL 2703701 (9th Cir. May 26, 2020), available at the Ninth Circuit and Westlaw.

Another COVID-19 related TRO appeal

In South Bay United Pentecostal Church v. Newsom, the Ninth Circuit held that it had jurisdiction to review a temporary restraining order in a COVID-19 related case.

The case challenged the application of California’s COVID-19 stay-at-home order to in-person religious services. The district court denied a TRO, and the plaintiffs appealed. They also asked the Ninth Circuit for an emergency injunction allowing in-person services pending the appeal.

The majority opinion said little on jurisdiction—it noted only that the denial of the TRO was “tantamount to the denial of a preliminary injunction”—and denied the emergency relief. Judge Collins dissented on the emergency relief. But he explained that the district court had held that the state law was a neutral law of general application, subject only to rational-basis review. “[T]his threshold legal conclusion [was] indisputably fatal to Plaintiffs’ Free Exercise claim.” So any future hearing would be unnecessary. Judge Collins accordingly agreed with the majority that the district court’s order was “tantamount to a denial of a preliminary injunction” and thus appealable under 28 U.S.C. § 1292(a)(1).

South Bay United Pentecostal Church v. Newsom, 2020 WL 2687079 (9th Cir. May 22, 2020), available at the Ninth Circuit and Westlaw.

The Sixth Circuit issued three decisions touching on the scope of review from denials of First Step Act relief

The issue is no longer jurisdictional, but the Sixth Circuit continues to address the scope of 18 U.S.C. § 3742. That statute specifies the situations in which appellate courts can grant relief in sentencing appeals, such as when a sentence is “imposed in violation of law.” In three decisions last week, the Sixth Circuit touched on whether § 3742 applies to the review of denials of sentence modifications under the First Step Act (and thus provides grounds for granting relief in those appeals). In United States v. Smithers, the court avoided answering the question because the government had forfeited any argument that the statute did not apply. In United States v. Richardson, the Sixth Circuit assumed that § 3742 applied to denials of First Step Act relief, which the court could do because it was affirming the district court’s decision on the merits. Concurring in Richardson, Judge Kethledge contended that the statute did not apply to denials of sentencing modifications at all; it applies only to new sentences. And in the unpublished (and thus non-precedential) United States v. Hunnicutt, the Sixth Circuit held that a defendant could not appeal the denial of First Step Act relief because § 3742 does not apply to those denials.

Collectively, these three cases produced three approaches, two concurrences, and only one (unpublished) opinion with a square holding on the issue. For more, see my post Mixed Signals on Reviewing First Step Act Denials.

United States v. Smithers, 2020 WL 2702500 (6th Cir. May 26, 2020), available at the Sixth Circuit and Westlaw.

United States v. Richardson, 2020 WL 2781306 (6th Cir. May 29, 2020), available at the Sixth Circuit and Westlaw.

United States v. Hunnicutt, 2020 WL 2787699 (6th Cir. May 29, 2020), available at the Sixth Circuit and Westlaw.

The Sixth Circuit soundly dismissed a qualified-immunity appeal insofar as it disputed the facts

In Sanford v. City of Detroit, the Sixth Circuit affirmed the denial of qualified immunity to police officers that had fabricated evidence against the plaintiff. The case involves tragic facts: the plaintiff was coerced into confessing to murder at the age of 14, officers lied about that confession and other things, someone else confessed to the murder, and the plaintiff spent 9 years in jail before being exonerated. The plaintiff sued the officers for (among other things) fabricating evidence, coercing his confession, and maliciously prosecuting him. The district court denied the officers’ request for qualified immunity, and the Sixth Circuit affirmed. It also squarely rejected the defendants’ attempts to dispute the factual basis for assessing qualified immunity:

[The defendants] argue that they are entitled to qualified immunity against [the plaintiff]’s claim that they fabricated evidence against him. In doing so, they brazenly seek to have us revisit the district court’s assessment of the relevant evidence, which in this interlocutory appeal we will not do.

Sanford v. City of Detroit, 2020 WL 2768859 (6th Cir. May 28, 2020), available at the Sixth Circuit and Westlaw.

The Eleventh Circuit addressed cumulative finality in a criminal appeal

In United States v. Montemayor, the Eleventh Circuit held that it lacked jurisdiction to review a forfeiture order because the defendant had appealed before the district court decided the amount of the forfeiture.

The defendant in Montemayor pleaded guilty, and the district court imposed a sentence of imprisonment. But the district court left open any forfeiture; more information was necessary to determine its amount. The district court also advised the defendant “that he would be able to appeal if he believed that his guilty plea was somehow unlawful or involuntary or there is some other fundamental defect in his proceedings.” The defendant then filed his only notice of appeal. A few months later, the district court entered a $192 million forfeiture order against the defendant.

The Eleventh Circuit affirmed the sentence of imprisonment. It also held that it could not address the forfeiture. The defendant filed his only notice of appeal before the district court had decided the amount of the forfeiture. And Federal Rule of Appellate Procedure 4(b)(2) did not save that premature appeal:

Rule 4(b)(2) applies where a notice of appeal is filed after a sentence is announced but before the judgment is entered on the docket, however, “[i]f the court has not yet decided the issue that the appellant seeks to appeal, then [Rule 4(b)(2)] does not come into play.”

(Quoting Manrique v. United States.) The subsequent entry of the forfeiture amount thus did not save the premature notice.

United States v. Montemayor, 2020 WL 2787600 (11th Cir. May 29, 2020), available at the Eleventh Circuit and Westlaw.