Appealing conflict-based attorney-withdrawal motions, administrative remands, motions to seal, deferred restitution, foreign sovereign immunity, and more.
June 22, 2020
There were lots of interesting decisions last week. The Third Circuit held that attorneys can immediately appeal from denials of motions to withdraw due to a conflict of interest. The D.C. Circuit heard an appeal from an administrative remand in a suit involving the rates paid to pilots on the Great Lakes. The Fourth Circuit appeared to hold that litigants can immediately appeal denials of motions to seal, although the application of that holding to future cases is not entirely clear. The Ninth Circuit held that only one notice of appeal is required in deferred restitution cases. And the D.C. Circuit held that it could review whether a foreign sovereign could be ordered to simultaneously brief both its merits defenses and immunity. Plus two Eleventh Circuit decisions on qualified-immunity appeals and intervention appeals.
- The Third Circuit Held That Attorneys Can Immediately Appeal Denials of Motions to Withdraw Due to a Conflict
- The D.C. Circuit Heard an Immediate Appeal From an Administrative Remand
- The Fourth Circuit on Immediate Appeals From Denials of Motions to Seal
- The Ninth Circuit on Notices of Appeal and Deferred Restitution Orders
- The D.C. Circuit Held That Ordering a Foreign Sovereign to Simultaneously Address the Merits and Sovereign Immunity Was an Appealable Denial of Immunity
- Quick Notes
The Third Circuit Held That Attorneys Can Immediately Appeal Denials of Motions to Withdraw Due to a Conflict
In United States v. Bellille, the Third Circuit held that attorneys can immediately appeal from the denial of motions to withdraw as criminal counsel due to a conflict of interest.
Simplifying a bit, the appeal in Bellille arose out of a large RICO prosecution pending in the Virgin Islands. The district court appointed an attorney to represent one of the defendants. Shortly thereafter, the attorney joined (in an of-counsel capacity) a small firm that was representing one of the witnesses in the RICO case. The attorney then moved to withdraw, arguing that his relationship with the firm created an conflict of interest. The district court denied the motion and ordered the attorney to wall himself off from the representation of the witness. The attorney then appealed.
The Third Circuit held that appellate jurisdiction existed under the collateral-order doctrine. Under that doctrine, parties can appeal categories of district court decisions that (1) the district court conclusively resolved, (2) are important and completely separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The Third Circuit concluded that the district court had conclusively denied the motion to withdraw. The conflict issue was completely separate from the merits of the RICO prosecution. And the decision would not be effectively reviewable on appeal from a final judgment. If the district court was wrong in denying withdrawal and the case proceeded to trial, the attorney will “suffer[] the harm of being forced to violate his ethical obligations.” Appellate review after a final judgment cannot rectify that harm.
The Third Circuit also rejected the government’s argument that decisions on motions to withdraw should be treated the same as decisions on motions to disqualify attorneys. The Supreme Court has held that parties cannot immediately appeal decisions granting or denying disqualification. Denials of motions to withdraw due to a conflict, the Third Circuit thought, are different. In the disqualification context, appellate courts can remedy a prejudicial error by ordering a new trial. But in the conflict context, the harm comes from the conflicted representation itself.
Several other circuits have held that attorneys can immediately appeal denials of motions to withdraw due to a conflict. Bellille is particularly noteworthy, however, due to its being a criminal case. (Two Second Circuit decisions have applied this rule in the criminal context, though both did so without much analysis.) Courts are particularly reluctant to allow interlocutory appeals in the criminal context. But the Third Circuit thought that the criminal aspects of the case did not warrant different treatment:
The ethical violations counsel would be forced to commit for conflicts of interest are the same in the civil and criminal context. Once a court compels an attorney to violate ethical obligations, the harm is done, whether the matter be a civil or a criminal trial.
On the merits, the Third Circuit vacated the district court’s decision and remanded for factfinding on the attorney’s relationship with the firm and other matters.
United States v. Bellille, 2020 WL 3248122 (3d Cir. June 16, 2020), available at the Third Circuit and Westlaw.
The D.C. Circuit Heard an Immediate Appeal From an Administrative Remand
In American Great Lakes Ports Association v. Schultz, the D.C. Circuit held that an order remanding a dispute to an agency was final and appealable. Administrative remands are normally not final. But sometimes they are. American Great Lakes illustrates one exception to the general rule that applies when when, despite the remand, the dispute is effectively over in the district court and the agency. The dispute in American Great Lakes was over, and no further proceedings before the agency were ordered or likely. The D.C. Circuit accordingly held that it had appellate jurisdiction.
For more, see my post Great Lakes Pilots & the Administrative-Remand Rule.
American Great Lakes Ports Association v. Schultz, 2020 WL 3240903 (D.C. Cir. June 16, 2020), available at the D.C. Circuit and Westlaw.
The Fourth Circuit on Immediate Appeals From Denials of Motions to Seal
In United States v. Doe, the Fourth Circuit held that a government witness could appeal from a district court order refusing to seal an opinion.
The opinion in question concerned the defendant’s motion to reduce his sentence. The defendant in Doe had pleaded guilty to drug crimes, cooperated with the government, and received a substantially reduced sentence. The defendant later moved to reduce his sentence, relying on Guidelines amendments that had reduced his base offense level. But the district court denied that motion. In explaining its decision, the district court referred to the the defendant’s cooperation.
The defendant—still incarcerated—became concerned that the details of his cooperation might place him at risk; other inmates might uncover this information through electronic legal research in the prison library. The defendant accordingly moved to seal the order. The district court denied that motion, too, stating that the information had been public for months before the defendant moved to seal it. The defendant then appealed.
The Fourth Circuit held that it had jurisdiction to review the denial of the motion to seal. The court had not previously addressed this issue. But it saw several reasons for allowing the appeal. First, the court had allowed immediate appeals via the collateral-order doctrine from orders unsealing court documents. Second, there were no ongoing, collateral proceedings with which the appeal might interfere. The defendant’s criminal case was over, and this was a post-judgment motion to alter his sentence. And third, although the Fourth Circuit had expressed a preference for using mandamus to review sealing-related orders, that preference applied primarily to third parties (such as the press) and was not a hard and fast rule.
The jurisdictional decision in Doe is correct; the criminal proceedings were long since over, and this was a classic post-judgment appeal. But it will be interesting to see how future cases treat the rule in Doe. The Fourth Circuit never squarely held that all denials of motions to seal are appealable (as other courts have). Granted, under the collateral-order doctrine, appealability decisions are categorical. But it’s not clear that the court was using the collateral-order doctrine; it might have seen this as a post-judgment appeal. And even if the Fourth Circuit was applying the collateral-order doctrine, the relevant category might be post-judgment denials of motions to seal. After all, the court’s conclusion on jurisdiction emphasized the post-judgment nature of the appeal:
We . . . exercise jurisdiction pursuant to 28 U.S.C. § 1291 over the district court’s final, post-judgment order.
What will the Fourth Circuit do if a party tries a similar appeal in the middle of ongoing district court proceedings?
On the merits, a split panel held that the district court erred in not sealing the order. Judge Richardson dissented, contending that the specifics of the case did not warrant sealing.
United States v. Doe, 2020 WL 3263893 (4th Cir. June 17, 2020), available at the Fourth Circuit and Westlaw.
The Ninth Circuit on Notices of Appeal and Deferred Restitution Orders
In United States v. Shehadeh, the Ninth Circuit held that a single notice of appeal after a deferred restitution order is sufficient to appeal all aspects of the case.
Simplifying a bit, the defendant in Shehadeh pleaded guilty to two arson counts. The district court imposed a 30-year sentence but deferred any decision on restitution. The defendant did not then file a notice of appeal. Several months later, after denying the defendant’s motion to withdraw his plea, the district court entered an amended judgment that ordered restitution. The defendant then appealed.
Invoking the Supreme Court’s 2017 decision in Manrique v. United States, the government argued that the notice of appeal was too late to appeal the custodial sentence. Manrique held that a notice of appeal filed after entry of a custodial sentence but before a restitution order was not effective to appeal the latter restitution order. In other words, a deferred restitution order produces two appealable decisions, not one. In Shehadeh, the government argued a notice of appeal must be filed from each. And the defendant’s single notice was untimely as to the custodial sentence. Under Federal Rule of Appellate Procedure 4(b)(1)(A)(i), appeals in criminal cases normally must be filed within 14 days of “the entry of judgment or the order being appealed.” Months had passed between the imposition of the defendant’s custodial sentence and his notice of appeal. This delay, the government argued, precluded any appeal of the custodial sentence.
The Ninth Circuit rejected this argument. Manrique, the court explained, held only that a notice of appeal after entry of a custodial sentence is not effective to appeal a later district court decision. The case did not hold that a notice is required after entry of both the custodial sentence and restitution. Granted, under Manrique, the defendant in Shehadeh could have filed a notice of appeal within fourteen days of the custodial sentence. But nothing required him to. He could also wait until the final amended sentence to appeal all aspects of his sentence:
This notice of appeal, timely filed after the district court had decided all remaining issues in the case, was sufficient to appeal the plea, the initial custodial sentence, and the final restitution order.
Indeed, “[b]ecause restitution is an aspect of sentencing, [the defendant]’s sentence was not final until the amended judgment issuing restitution was ordered.” In a footnote, the court added that delaying an appeal until after a final judgment is efficient:
The government’s proposed rule would require a defendant to appeal twice: first, immediately after the custodial sentence is imposed, and then again after the amount of restitution is determined. This rule would be inefficient, and it is required neither by Manrique nor by the Federal Rules of Appellate Procedure.
On the merits, the Ninth Circuit affirmed the decision to not to withdraw the guilty plea.
United States v. Shehadeh, 2020 WL 3278724 (9th Cir. June 18, 2020), available at the Ninth Circuit and Westlaw.
The D.C. Circuit Held That Ordering a Foreign Sovereign to Simultaneously Address the Merits and Sovereign Immunity Was an Appealable Denial of Immunity
In Process & Industrial Developments Ltd. v. Federal Republic of Nigeria, the D.C. Circuit held that a foreign sovereign may immediately appeal from an order requiring it to brief both sovereign immunity and the merits.
Process & Industrial Developments involved a natural-gas company’s efforts to enforce an arbitral award against Nigeria. When the company sued Nigeria in federal court, Nigeria moved to dismiss for lack of subject-matter jurisdiction under the Foreign Sovereign Immunities Act. The company then sought an order requiring Nigeria to simultaneously brief both immunity and its defense on the merits. As the company saw things, the Federal Arbitration Act treats petitions to confirm as motions, not pleadings, which require joint briefing. The district court agreed with the company and ordered Nigeria to brief both defenses. Nigeria then appealed.
The D.C. Circuit held that the district court’s decision was immediately appealable. Although the Supreme Court has never held as much, the courts of appeals agree that denials of foreign sovereign immunity are immediately appealable under the collateral-order doctrine. And in deferring on Nigeria’s immunity until after plenary briefing, the district court had effectively denied immunity. The district court’s decision thus satisfied every collateral-order requirement. It conclusively decided that Nigeria needed to defend on the merits. As a briefing order, it was separate from the merits of the case. And it would not be effectively reviewable on appeal from a final judgment, as the protection is one from litigation.
The D.C. Circuit added that to be appealable the claim of immunity must be colorable. The court analogized to federal questions that are too insubstantial to support original subject-matter jurisdiction. The requirement also made practical sense, as it would prevent meritless appeals. The claim of immunity in Process & Industrial Developments, the court concluded, was colorable. So the court had appellate jurisdiction.
On the merits, the D.C. Circuit held that the district court must decide immunity before Nigeria could be forced to address the merits.
Process & Industrial Developments Ltd. v. Federal Republic of Nigeria, 2020 WL 3393452 (D.C. Cir. June 19, 2020), available at the D.C. Circuit and Westlaw.
Quick Notes
The Eleventh Circuit issued two decisions worth a brief mention.
In Hooks v. Brewer, the Eleventh Circuit refused to address proximate causation as part of a qualified-immunity appeal. The case involved claims against police officers for excessive force, an illegal search, and an unlawful seizure. The defendants appealed after the district court denied their request for qualified immunity. And on appeal, the Eleventh Circuit reversed some aspects of the district court’s denial. At the end of the opinion, the court noted that it would not address the defendants’ proximate-causation arguments. Causation, the court concluded, was outside of its jurisdiction:
In reviewing the denial of qualified immunity, we have jurisdiction over only the legal issue of whether the defendant violated clearly established law, which does not include whether a genuine factual dispute exists as to an element of a claim (such as causation).
The court added that it would not exercise pendent appellate jurisdiction over causation, as the issue was not inextricably intertwined with immunity.
And in Gumm v. Jacobs, the Eleventh Circuit applied its “anomalous rule” for intervention appeals. In these appeals, the Eleventh Circuit applies an odd rule under which jurisdiction turns on the merits:
We have provisional jurisdiction under the “anomalous rule” to review an order denying intervention. If the district court’s decision was correct, we must dismiss the appeal for lack of jurisdiction. If the district court erred in denying a motion to intervene, we retain jurisdiction and must reverse.
This is a silly rule. The court is reviewing whether the district court committed an error, which requires jurisdiction. To conclude that you lack jurisdiction only after reviewing the district court’s decision is jurisdictional make believe that makes things more complicated than they need to be.
Hooks v. Brewer, 2020 WL 3397738 (11th Cir. June, 19, 2020), available at the Eleventh Circuit and Westlaw.
Gumm v. Jacobs, 2020 WL 3265004 (11th Cir. June 17, 2020), available at the Eleventh Circuit and Westlaw.