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Last week, the Ninth Circuit held that defendants cannot use the collateral-order doctrine to immediately appeal from the denial of derivative sovereign immunity. The Eleventh Circuit concluded that a duty-to-defend order was an appealable injunction. The Sixth Circuit rejected an argument that a Rule 59(e) motion was not good enough to delay the start of the appeal clock. The Tenth Circuit related forward a premature notice of appeal. The Second Circuit excused the late filing of a cross-appeal, though it noted that not everyone agrees that the filing deadline is non-jurisdictional. And the Fifth Circuit refused to review the availability of punitive damages while hearing a qualified-immunity appeal.
Last week produced several decisions of note. The most interesting to me was a divided motions panel decision from the Sixth Circuit. The majority refused to dismiss an appeal when the plaintiff asked the district court to grant summary judgment for the defendant. The case strikes me as odd, however, as the plaintiff apparently wants to appeal only an interlocutory class-certification decision—the plaintiff doesn’t seem to challenge its merits loss.
In other decisions, the Eleventh Circuit rejected several proffered grounds for appellate jurisdiction in a case that challenged an order involving the winding down of a trust. The Eighth Circuit split over whether a decision staying an action pending the resolution of related state court proceedings was a Colorado River stay that would warrant an immediate appeal. And several courts addressed their jurisdiction in appeals from the denial of qualified immunity. Plus effective notices of appeal, injunction appeals, and appeals from sealing orders.
I’m back from my annual holiday break with roundup covering the previous two weeks. There were a few decisions of note. The Third Circuit joined nearly every other circuit in holding that it cannot review a discretionary decision not to waive the Violence Against Women Act’s deadline for reopening immigration proceedings. The en banc Federal Circuit declined to reconsider whether a damages trial is an “accounting” for purposes of § 1292(c)(2). The Seventh Circuit held that Federal Rule of Civil Procedure 58’s provisions on deeming a judgment entered apply to the denial of a writ of coram nobis. That court also dismissed a qualified-immunity appeal insofar as the defendants challenged the factual basis for the immunity denial. Plus pendent appellate jurisdiction over a judicial-notice decision and the scope of remand appeals.
It’s the last roundup of the year. And it’s a short one. The Third Circuit dismissed an appeal from an order concluding that factual disputes precluded a decision on judicial-proceedings privilege. The defendant had framed the appeal as one from the denial of absolute immunity. But even if it was, unresolved fact issues prevented the order from being appealable. The Eleventh Circuit dismissed an appeal from a remand order, rejecting—and expressing some doubts about the existence of—the “matter of substantive law” exception to 28 U.S.C. § 1447(d). And the Second Circuit asked the Board of Immigration Appeals to specify the preclusive effect of an inadmissibility determination when a petitioner later withdraws an application for admission.
I’ll be back after the new year with the annual double-sized Winter Break edition to cover what happens over the break.
I’m a little late with this week’s roundup, but there were several cases worth discussing. The Seventh Circuit applied the two (separate but seemingly identical) restrictions on reviewing a bankruptcy court’s remand orders. The Sixth Circuit rejected a factual challenge to the denial of qualified immunity and dismissed an appeal from a prevailing defendant who was unhappy with some of the district court’s analysis. The Third Circuit explained that an order deeming a trust governed by ERISA was not an appealable injunction. The Eleventh Circuit held that when the district court does not set out its judgment in a separate document, the time for filing post-judgment motions begins to run once a party files a notice of appeal. That court also held that a notice of appeal designating forthcoming decisions on post-judgment motions was inadequate to appeal those subsequent decisions. Plus a new cert petition on appealing discovery orders in Chapter 15 bankruptcy proceedings, appealing orders refusing to dissolve an injunction, and the appealability of denied summary-judgment motions.
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.
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.
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.
Last week was a big one for mandamus in the Federal Circuit. That court issued three writs of mandamus (and dismissed another as moot), all directed to denials of transfer motions by the same district court judge. That judge has recently seen a lot of mandamus petitions targeting his transfer decisions, and I’ve linked several blog posts below discussing these petitions.
In other decisions, the Eleventh Circuit held that it could immediately review unsealing orders via the collateral-order doctrine. That court had already held that orders granting motions to seal and denying motions to unseal were immediately appealable via the doctrine. The court extended the rationale of those decisions to unsealing orders. And the Sixth Circuit used pendent appellate jurisdiction to review the merits of a state law claim as part of a qualified-immunity appeal. The merits of that claim were “inextricably intertwined” with state law immunity, so the court could review both.
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