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Last week, the Third Circuit illustrated one side of the split on whether courts must (or even can) address standing and other issues of subject-matter jurisdiction alongside interlocutory appeals. The Sixth Circuit vacated an improper partial judgment under Rule 54(b). The Ninth Circuit used the collateral-order doctrine to review an ERISA dispute that seemed to have stalled in the district court. And the First Circuit refused to use mandamus to order the petitioners’ release from immigration custody, which they had sought due concerns about COVID-19 and overcrowding. Plus an appeal after an implicit denial of immunity and an appeal from a dismissal without prejudice due to a lack of service.
Civil-rights plaintiffs sometimes sue both the government officials who injured them and the municipal entity (city, school, county, etc.) that employed the officials. (The claims against the municipalities are often called “Monell claims,” after the Supreme Court decision that governs them.) While individual government officials can invoke the qualified immunity defense, municipalities cannot. And while government officials can immediately appeal from the denial of immunity, municipalities have no right to immediately appeal from a district court’s decision refusing to dismiss a municipal claim.
But that hasn’t stopped municipalities. They’ve instead piggybacked on their employees’ qualified-immunity appeals via the doctrine of pendent appellate jurisdiction. This practice—which I call “municipal piggybacking”—is widespread, and nearly all courts of appeals allow it. It’s also a completely unnecessary practice that creates extra work for civil-rights plaintiffs. Municipal piggybacking is just one more way in which the special appellate rules for qualified immunity make civil-rights litigation more complex, expensive, and time consuming.
In a new paper—forthcoming in the Penn State Law Review—I tackle municipal piggybacking. I trace its development in the courts of appeals. I show that the practice is unpragmatic, unnecessary, and needs to stop. And I show how municipal piggybacking is only one part of a larger set of appellate-jurisdiction rules that frustrate the pursuit of civil-rights claims.
The paper is titled Municipal Piggybacking in Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
When a court of appeals hears an interlocutory appeal, must the court ensure that the district court had subject-matter jurisdiction? A Third Circuit decision from earlier this week—O’Hanlon v. Uber Technologies, Inc.—says no. In the course of deciding an appeal from the denial of arbitration, the Third Circuit refused to address whether the plaintiffs had standing. The court could resolve arbitrability without considering standing, so standing was outside of the scope of interlocutory review.
I’m not aware of any decisions to the contrary in the context of arbitration appeals. But some courts of appeals have said that they must address the district court’s subject-matter jurisdiction in the course of deciding other kinds of interlocutory appeals. So it seems that a split exists on this general issue.
There’s a lot to talk about from last week. The Federal Circuit said that it could use mandamus to review the decision to institute inter partes review in patent cases. Several decisions addressed the content requirements for a notice of appeal, including a Second Circuit decision on the failure of named class members to appeal alongside the class representatives. Other decisions addressed appeals under the collateral-order doctrine, including a Federal Circuit decision on orders unsealing a complaint containing allegedly confidential information. The Fifth Circuit addressed its jurisdiction to review orders requiring an in-person guilty plea as well as decisions ordering a criminal defendant released from ICE custody due to her release on bail. That court also split over the existence of a Rule 58 judgment in a case. Plus the effect of pro se, post-judgment motions by represented parties on the appeal timeline, and a Bivens appeal.
But first some hypothetical jurisdiction, which the First Circuit used to avoid deciding whether a criminal defendant can appeal an order refusing to strike a “Death Notice” in a death-penalty case.
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment cannot challenge the factual basis for the immunity denial. Yet defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
These appeals need to stop. In a new essay—forthcoming in the University of Illinois Law Review Online—I argue that courts need to start sanctioning defendants who take them. I show that the law governing these appeals is (to use a term from qualified immunity itself) clearly established and has been for decades. I illustrate the problem by cataloguing last year’s improper, fact-based qualified-immunity appeals, which unnecessarily delayed the underlying litigation by an average of 14 months. And I explain how sanctions might be the only way to stop these appeals.
The essay is titled Sanctioning Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
Last week saw the Tenth Circuit reject an attempt to dispute the factual basis for a qualified-immunity denial. There were also decisions on finality after dismissals without prejudice, pendent appellate jurisdiction in an injunction appeal, and the relation forward of a premature notice of appeal.
Last week saw only two decisions of note, both involving appeals from remand orders. The Fifth Circuit held that § 1447(d) does not bar appellate review of abstention-based remand orders. And the Ninth Circuit dealt with an appeal from a bankruptcy remand that, while technically marking the end of an action, was too related to an ongoing bankruptcy proceeding to be deemed final. Plus two recent cert petitions of note: one asking if discovery appeals under Perlman require a privilege claim, and one suggesting that Hall v. Hall should apply only prospectively.
Last week saw another COVID-19 related appeal from a temporary restraining order. The Eleventh Circuit addressed the order-designation requirement for notices of appeal with mixed results. The Ninth Circuit held that it could not review a refusal to expedite criminal proceedings after a defendant allegedly violated the terms of his supervised release. The Fourth Circuit dismissed an appeal from a defendant’s children after the defendant used their bank accounts to post a supersedeas bond. And the Eighth Circuit held that a decision was not final due to unresolved claims—even though the district court thought it was done with the case.
Let’s start with a new cert petition on preserving legal issues via a denied summary-judgment motion.
The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal. And that’s an issue on which the courts have split.
A new cert petition asks the Supreme Court to resolve this split. The case is Ericsson Inc. v. TCL Communication Technology Holdings Ltd., and the response is due March 19, 2020.
Standards of review are a key part of appellate litigation—you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. And a variety of standards of review exist, from de novo review for legal issues to clear-error review for factual issues to abuse-of-discretion review for a variety of district court decisions.
In a new article—Rethinking Standards of Appellate Review—Adam Steinman challenges the long-standing practice of assigning a standard of review to a particular issue. He would replace these various standards with a single one: the court of appeals can reverse only if it is more likely to reach the correct decision than the trial court. Steinman argues that this unified standard, coupled with the rule that errors of law always receive de novo review, would further both the error-correction and law-development purposes of appellate courts.
The abstract is below, and the article is available on SSRN. I read an earlier draft of this article and can highly recommend it—it’s very thought provoking.
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