The Week in Federal Appellate Jurisdiction: June 7–13, 2020

Last week saw a few decisions of note. There were three qualified-immunity appeals that raised jurisdictional issues. In one, the Tenth Circuit declined to address arguments that the defendants had failed to develop in the district court. In another, the Eighth Circuit dismissed the appeal because the defendants disputed the facts. And the Sixth Circuit declined to exercise pendent appellate jurisdiction over a municipality’s appeal. Also, the Seventh Circuit addressed the appealability of a dismissal without prejudice when the statute of limitations had not yet run on the plaintiff’s claim.

• The Tenth Circuit Declined to Address Unpreserved Qualified-Immunity Arguments
• The Eighth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal
• The Sixth Circuit Declined to Extend Pendent Appellate Jurisdiction to a Municipal Appeal
• The Seventh Circuit Addressed the Appealability of a Dismissal Without Prejudice

The Tenth Circuit Declined to Address Unpreserved Qualified-Immunity Arguments

In Tillmon v. Douglas County, the Tenth Circuit held that the defendants had failed to preserve their qualified-immunity arguments for purposes of an interlocutory appeal.

The plaintiff in Tillmon sued Douglas County, Colorado as well as its sheriff and two sheriffs’ office employees. He alleged that they discriminated against him, denied him medical care, and failed to give him notice of disciplinary hearings while he was confined in the Douglas County jail. The officers and the county moved to dismiss his claims. But their argument on qualified immunity consisted of only one paragraph. That wasn’t the only problem: they also sought qualified immunity for the county (even though municipalities cannot invoke qualified immunity), failed to address the plaintiff’s municipal liability claim, and failed to address the plaintiff’s 28 U.S.C. § 1985 conspiracy claim.

The district court denied most of the motion. It concluded that one claim was not sufficiently pleaded, but the others were. And it declined to address qualified immunity “because the defendants’ failure to develop that issue suggested they ‘only raise[ed] the issue of qualified immunity to preserve it from waiver.’” The defendants moved for reconsideration, this time addressing the § 1985 claim and developing their qualified-immunity arguments. The district court denied this motion, noting that reconsideration was “not the time to shore up a motion that was lacking.” The defendants then appealed.

The Tenth Circuit untangled several issues on its way to affirming. It first held that the district court’s declining to rule on qualified immunity amounted to a denial for appeal purposes. The court noted that the “defendants have, for the time being, lost their right to be immune from this suit.” So the Tenth Circuit had jurisdiction over the appeal.

But jurisdiction did not mean that the court would address the defendants’ arguments. The court concluded that the defendants had failed to develop them in the district court:

Although the defendants’ single-paragraph argument in the district court has morphed into 30 pages of appellate argument, their belated appellate argument [could not] remedy their perfunctory assertion of qualified immunity below.

That meant the court of appeals would not address the qualified-immunity issues. The motion for reconsideration did not change things, as “arguments raised for the first time in a motion for reconsideration are not properly before the [district] court and generally need not be addressed” on appeal. Nor did the defendants’ more thorough district court briefing on the adequacy of the allegations allow the Tenth Circuit to review qualified immunity. “Although Rule 12(b)(6) arguments can be ‘exceedingly’ similar to arguments in support of qualified immunity, qualified immunity ‘is conceptually distinct from the merits of the plaintiff’s claim.’” So “failure-to-state-a-claim arguments cannot substantiate an otherwise unsubstantiated qualified-immunity defense.” (Cleaned up.) The court of appeals accordingly would not address the defendants’ entitlement to qualified immunity.

Finally, the Tenth Circuit held that it lacked jurisdiction to address the municipal defendants’ arguments. They, too, had failed to raise those arguments until their motion for reconsideration. And the court saw “no reason to exercise supplemental jurisdiction [read: pendent appellate jurisdiction] here given that neither the appealable claim nor the municipal-liability claim [was] preserved for appellate review.”

Tillmon v. Douglas County, 2020 WL 3069448 (10th Cir. June 10, 2020), available at the Tenth Circuit and Westlaw.

The Eighth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal

In M.A.B. v. Mason, the Eighth Circuit dismissed a qualified-immunity appeal that turned entirely on disputed facts.

The plaintiff alleged that after being stopped by police, they conducted a thorough search of her body, including a strip and body-cavity search. As relevant here, the police officer sought qualified immunity for part of the search—specifically, the search of the plaintiff’s upper body—arguing that the search did not violate the Fourth Amendment. The parties disputed whether the cavity search occurred, so a genuine dispute of material fact existed on that point. The district court denied immunity. It concluded that the parties had presented only part of the encounter, and the court had to consider the search in its entirety—including the disputed cavity search—to decide immunity. The officer then appealed.

The Eighth Circuit concluded that the appeal turned solely on fact issues. The district court had not decided any abstract legal issues for the appellate court to review. The Eighth Circuit was instead “presented with the same incomplete record” as the district court. And the court of appeals lacked jurisdiction to review that record to determine whether it set forth a genuine issue of fact. The Eighth Circuit accordingly dismissed the appeal.

M.A.B. v. Mason, 2020 WL 3039059 (8th Cir. June 8, 2020), available at the Eighth Circuit and Westlaw.

The Sixth Circuit Declined to Extend Pendent Appellate Jurisdiction to a Municipal Appeal

In Enoch v. Hamilton County Sheriff’s Office, the Sixth Circuit reversed the denial of qualified immunity to officers who arrested people taking pictures in a courthouse hallway. The court also dismissed a tag-along appeal by the officers’ employer.

The Sixth Circuit noted that it would exercise pendent appellate jurisdiction over a municipal-liability claim if resolution of the individual defendants’ appeal necessarily resolved the municipality’s. But the municipality in Enoch argued that there was no official policy or custom necessary for Monell liability. Resolution of the officers’ appeal, the Sixth Circuit noted, did not address that issue. And the Sixth Circuit granted immunity on one of the plaintiffs’ claims because the law was not sufficiently clear—not because no violation of federal law occurred. So the individual officers’ appeal did not necessarily resolve the municipality’s.

Also of note, this was the second interlocutory qualified-immunity appeal in the action. The Sixth Circuit had previously affirmed the denial of immunity at the pleading stage. Last week’s appeal came after the district court denied immunity at summary judgment.

Enoch v. Hamilton County Sheriff’s Office, 2020 WL 3100192 (6th Cir. June 11, 2020), available at the Sixth Circuit and Westlaw.

The Seventh Circuit Addressed the Appealability of a Dismissal Without Prejudice

In Schroeder v. Malone, the Seventh Circuit held that a dismissal without prejudice was not final or appealable because the plaintiff could still file a new suit.

The district court in Schroeder dismissed the plaintiff’s suit for failure to prosecute but said that the dismissal was without prejudice. The plaintiff then appealed.

The Seventh Circuit noted that “[a] dismissal nominally without prejudice can be appealed if it is the end of the line for plaintiff as a practical matter—if, for example, the statute of limitations has expired—or if it is clear that the phrase ‘without prejudice’ is a misnomer or clerical error.” But that wasn’t the case in Schroeder. The six-year statute of limitations had not yet run. And the district court had warned the plaintiff several times that his case would be dismissed without prejudice if he failed to respond, so there was no “slip of the pen” in the terms of the dismissal. The Seventh Circuit accordingly dismissed the appeal for lack of jurisdiction.

Schroeder v. Malone, 2020 WL 3042145 (7th Cir. June 8, 2020), available at the Seventh Circuit and Westlaw.