The Week in Federal Appellate Jurisdiction: November 28–December 4, 2021

There’s lots to talk about from last week. The Fifth Circuit weighed in on the split over whether a struck post-judgment motion could reset the appeal clock. The Sixth Circuit again split on the extent to which it could separate “factual” and “legal” arguments in qualified-immunity appeals. Two other courts dealt with appeals that challenged the factual basis for immunity denials. The Fifth Circuit addressed its jurisdiction in post-judgment proceedings. And the Second Circuit explained how a partial summary-judgment decision could be a final decision. Plus decisions on reviewing § 1292(b) denials and unspecified costs.

• Struck Post-Judgment Motions & the Appeal Deadline
• Separating “Factual” & “Legal” Arguments in Qualified-Immunity Appeals
• Other Fact-Based Qualified-Immunity Appeals
• The Fifth Circuit on Post-Judgment Appeals
• The Second Circuit on “Partial” Summary-Judgment Decisions that Entirely Resolve a Dispute
• Quick Notes

Struck Post-Judgment Motions & the Appeal Deadline

After a district court enters its final judgment, civil litigants normally have 30 days to file their notice of appeal. But certain events—including the timely filing of certain post-judgment motions—can reset the appeal clock. When a litigant timely files one of these motions, the time to appeal runs from the district court’s decision disposing of that motion. Normally that means an order granting or (more commonly) denying the motion. But what if the district court strikes the motion due to a procedural defect?

In Al-Qarqani v. Saudi Arabian Oil Co., the Fifth Circuit held that an order striking a timely post-judgment motion resets the appeal clock just as much as an order granting or denying that motion. To hold otherwise—as the Tenth Circuit and some unpublished Fifth Circuit decisions have held—would violate Federal Rule of Civil Procedure 83(a)(2)’s prohibition on parties’ losing rights due to violations of rules of form.

But things could have been simpler. Under Federal Rule of Appellate Procedure 4(a)(4), the time to appeal runs from the district court’s decision “disposing of” the last post-judgment motion. An order striking a motion disposes of that motion and thus should be enough to reset the appeal clock. A contrary rule would require litigants to file protective notices of appeal alongside their post-judgment motions, just in case the district court ends up striking those motions.

For more on Al-Qarqani and the split over the effect of struck post-judgment motions, see my post Struck Post-Judgment Motions & the Appeal Deadline.

Al-Qarqani v. Saudi Arabian Oil Co., 2021 WL 5711555 (5th Cir. Dec. 2, 2021), available at the Fifth Circuit and Westlaw.

Separating “Factual” & “Legal” Arguments in Qualified-Immunity Appeals

When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But the scope of that appeal is limited. With rare and narrow exceptions, the court of appeals lacks jurisdiction to review the genuineness of any fact disputes—i.e., the facts that (according to the district court) a reasonable jury could find. The court of appeals must instead take the factual basis for the immunity denial as given and address only whether those facts amount to a violation of clearly established law. So courts of appeals must dismiss appeals that challenge the factual basis of an immunity denial and review only those that raise more abstract questions about the existence and clarity of a constitutional violation.

But what should an appellate court do if a defendant both challenges the factual basis for an immunity denial and raises those more abstract questions? The Sixth Circuit recently wrestled with this question in Gillespie v. Miami Township. The defendant in Gillespie repeatedly challenged the factual basis for an immunity denial. The Sixth Circuit dismissed the appeal in its entirety, concluding that these factual challenges were crucial to all of the defendant’s arguments. Judge Bush dissented in part to argue that the court should have separated the defendant’s impermissible factual challenges from his other arguments and addressed the latter.

The disagreement in Gillespie—the extent to which a court of appeals should dismiss factual challenges but then address any residual legal issues—seems to be one about how much leeway to give defendants in qualified-immunity appeals. If a defendant challenges the factual basis for an immunity denial, should the court of appeals pick through the defendant’s brief in search of arguments over which the court might have jurisdiction? Given the frequency of defendants’ challenging the factual basis for immunity denials—and the clarity of the law holding that those challenges are improper—I lean towards dismissing appeals when defendants never accept (for the purposes of appeal) the district court’s version of events. As Gillespie pointed out (and as I have, too), the limits on the scope of qualified-immunity appeals have been the law for over 25 years. Defendants who flout those limits add wholly unnecessary complexity, expense, and delay to civil-rights litigation. If these defendants cannot be bothered to keep their appeals within clear jurisdictional bounds, they should not get the benefit of immediate appellate review.

For more on Gillespie and separating “factual” and “legal” arguments (including why those are odd labels), see my post Separating “Factual” & “Legal” Arguments in Qualified-Immunity Appeals.

Gillespie v. Miami Township, 2021 WL 5575563 (6th Cir. Nov. 30, 2021), available at the Sixth Circuit and Westlaw.

Other Fact-Based Qualified-Immunity Appeals

Gillespie wasn’t the only fact-based qualified-immunity appeal from last week.

Jones v. Kuschell involved a fatal police shooting inside the decedent’s home. According to the district court, a reasonable jury could find that the decedent was descending the stairs towards the defendant police officer—unarmed, hands up, and complying with the officer’s commands—when the officer fired. The district court accordingly denied qualified immunity. The defendant nevertheless appealed. And in that appeal, he argued that the decedent had lunged down the stairs at the officer immediately before the shooting. That argument was outside of the Seventh Circuit’s jurisdiction. Under the version of events that the district court took as true—and the officer needed to take as true for purposes of the appeal—the shooting involved a decedent who was clearly surrendering when the officer fired.

Crockett v. Ashley involved another fatal police shooting, this one on the decedent’s front porch. According to the district court, a reasonable jury could find that the decedent had merely opened the front door for a split second and not raised his gun when the defendant police officer shot him. The district court accordingly denied qualified immunity. The defendant then appealed and argued that after knocking on the decedent’s door, the decedent flung the door open and raised a gun toward the officer. The Fourth Circuit lacked jurisdiction to review whether the decedent posed a sufficient threat to justify the shooting. It accordingly dismissed the appeal.

There was also the Ninth Circuit decision in Vargas v. Perez, which—without any details—dismissed an appeal that challenged the factual basis for an immunity denial.

Jones v. Kuschell, 2021 WL 5563715 (7th Cir. Nov. 29, 201), available at the Seventh Circuit and Westlaw.

Crockett v. Ashley, 2021 WL 5585744 (4th Cir. Nov. 30, 2021), available at the Fourth Circuit and Westlaw.

Vargas v. Perez, 2021 WL 5600236 (9th Cir. Nov. 30, 2021), available at the Ninth Circuit and Westlaw.

The Fifth Circuit on Post-Judgment Appeals

In Gross v. Keen Group Solutions, L.L.C., the Fifth Circuit dismissed an appeal from the denial of a Rule 60(b)(5) motion in post-judgment proceedings.

Gross involved efforts to collect on an arbitration award. The district court confirmed the award, and the defendant paid at least part of it. The defendant then asked the district court to deem the judgment satisfied under Federal Rule of Civil Procedure 60(b)(5). The district court denied that request and also compelled discovery related to the defendant’s payment obligations. The defendant then appealed.

The Fifth Circuit dismissed the appeal because the Rule 60(b)(5) denial was not a final decision. Granted, Rule 60(b)(5) denials are normally final, as they come after the district court has issued a final decision and normally leave nothing left to do in the district court. But in Gross, the entire collection efforts remained pending. Indeed, the district court’s order “compelling discovery impliedly acknowledged a number of factual and legal contentions yet to be decided.” Once the district court had resolved all outstanding issues regarding the payment of the arbitration award, its decision would be final.

Judge Haynes dissented. As she saw things, the district court had determined that the defendant had not satisfied the judgment, warranting the denial of the Rule 60(b)(5) motion. And that was a final decision. The existence of unresolved issues, Judge Haynes contended, did not make that decision any less final.

Gross v. Keen Group Solutions, L.L.C., 2021 WL 5702674 (5th Cir. Dec. 2, 2021), available at the Fifth Circuit and Westlaw.

The Second Circuit on “Partial” Summary-Judgment Decisions that Entirely Resolve a Dispute

In Massaro v. Palladino, the Second Circuit said that a district court’s partial summary-judgment decision was final and appealable because the district court intended to end the case.

Simplifying quite a bit (as I often do with ERISA cases), Massaro involved dispute between two groups of trustees overseeing union pension and welfare funds. The plaintiffs brought a variety of claims, including one for breach of fiduciary duty. The district court eventually granted summary judgment for the plaintiffs on their fiduciary-duty claims. And the district court thought that it did not need to reach any of the other claims, which all involved alternative theories of liability. The district court accordingly closed the case.

On appeal, the Second Circuit determined that the grant of summary judgment on only one claim was a final, appealable decision. Normally a partial grant of summary judgment does not resolve all claims in an action and is thus not a final decision. But an exception applies “when the district court clearly intends to close the case, i.e., to enter a final judgment.” And that was the case in Massaro. Although the district court had not formally resolved the plaintiffs’ other claims, those claims were simply alternative grounds for seeking the same relief that the plaintiffs had obtained in their fiduciary-duty claim. Everyone involved—the plaintiffs, the defendants, and the district court—thus understood the district court’s decision to resolve all of the claims and the dispute between the parties. So the summary-judgment decision was final.

Massaro v. Palladino, 2021 WL 5570814 (2d Cir. Nov. 30, 2021), available at CourtListener and Westlaw.

Quick Notes

In Agudas Chasidei Chabad of United States v. Russian Federation, the D.C. Circuit said that it could not use the collateral-order doctrine to review a district court’s refusal to certify an order for appeal under 28 U.S.C. § 1292(b). Section 1292(b)’s double-certification regime requires that the district court first determine that an interlocutory appeal is appropriate. The district court in Agudas Chasidei Chabad concluded that certification was improper. That meant no appeal via § 1292(b). The court of appeals also could not review that refusal to certify via the collateral-order doctrine, as “the collateral order doctrine was not intended to be employed as a vehicle for appellate revision of the essential determination committed by Congress to the District Court.” And insofar as the appeal could be considered a petition for mandamus, the D.C. Circuit denied it.

Agudas Chasidei Chabad of United States v. Russian Federation, 2021 WL 5750981 (D.C. Cir. Dec. 3, 2012), available at the D.C. Circuit and Westlaw.

And in Davis v. Legal Services of Alabama, Inc., the Eleventh Circuit dismissed a cross-appeal that purportedly challenged the denial of costs. The district court had entered a judgment that did not mention costs. But that, the Eleventh Circuit explained, did not implicitly deny costs. The district court had simply not yet addressed the matter. So while the underlying merits decision was final and appealable, any cost issue was not.

Davis v. Legal Services of Alabama, Inc., 2021 WL 5711043 (11th Cir. Dec. 2, 2021), available at the Eleventh Circuit and Westlaw.