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In 1985’s Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. This right to appeal impedes the swift resolution of many civil-rights actions, and it has been rightly criticized. But the right to appeal isn’t the only problem. In the years since Mitchell, courts have steadily expanded the scope and availability of qualified-immunity appeals. And these special appellate-procedure rules for qualified immunity have added unnecessary and unjustified difficulty, expense, and delay to civil-rights litigation.
This post summarizes some of ways in which courts have expanded qualified-immunity appeals.
Last week saw the last appellate jurisdiction/procedure decision for this year’s Supreme Court term. In Nasrallah v. Barr, the Court held that courts could review factual findings underlying denials of protection under the Convention Against Torture, even if the petitioner had been convicted of a crime. There were also several court of appeals decisions of note. The Sixth Circuit dismissed a discovery appeal that involved deposing as non-party fact witnesses two defendants who claimed qualified immunity. The Second Circuit addressed how long parties have to file a notice of appeal when the United States intervenes in a qui tam action. Plus improper qualified-immunity appeals, excusing the failure to amend a notice of appeal, the jurisdictionality of objecting to a magistrate judge’s report and recommendation, and more.
In Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. Regardless of whether these denials should be appealable (a debatable point), the Court fudged the collateral-order doctrine to squeeze qualified-immunity appeals into it. The fit wasn’t—and never has been—pretty. And Mitchell spawned the unique appellate-procedure rules for qualified immunity, which have added difficulty, expense, and delay to civil-rights litigation. Those rules are in sore need of change.
In Nasrallah v. Barr, the Supreme Court held that appellate courts can review factual findings that underly denials of protection under the Convention Against Torture, even if the petitioner has been convicted of a criminal offense. The Court distinguished between the two orders at issue in the immigration appeal: the final order of removal and the order denying protection under the Convention. The bar on reviewing factual findings applied only to the final order of removal. It did not apply to the separate order denying Convention protection, which tagged along with the final order of removal for appellate review. A dissent by Justice Thomas contended that immigration law’s “zipper clause” meant that the denial of Convention protection was reviewed as a part of the final order of removal. The bar on reviewing factual findings accordingly applied.
Note, the decision in Nasrallah marks the fifth and final appellate-jurisdiction case for this Supreme Court term.
Last week was eventful. The Fourth Circuit joined the recent chorus of opinions addressing appellate jurisdiction when parties dismiss some claims without prejudice. The Ninth Circuit addressed the scope of remand appeals under § 1447(d), adding a little more interest to the recent cert petition on the issue. Another court held that the denial of a COVID-19 related temporary restraining order was immediately appealable. And the Sixth Circuit issued a series of decisions on appeals from the denial of First Step Act relief. Plus an improper qualified-immunity appeal and cumulative finality in the criminal context.
The Sixth Circuit has recently spent some time addressing 18 U.S.C. § 3742. That statute specifies the situations in which appellate courts can grant relief in sentencing appeals, such as when a sentence is “imposed in violation of law.” In three decisions last week, the Sixth Circuit touched on whether § 3742 applies to the review of denials of sentence modifications under the First Step Act (and thus provides grounds for granting relief in those appeals). In United States v. Smithers, the court avoided answering the question because the government had forfeited any argument that the statute did not apply. In United States v. Richardson, the Sixth Circuit assumed that § 3742 applied to denials of First Step Act relief, which the court could do because it was affirming the district court’s decision on the merits. Concurring in Richardson, Judge Kethledge contended that the statute did not apply to denials of sentencing modifications at all; it applies only to new sentences. And in the unpublished (and thus non-precedential) United States v. Hunnicutt, the Sixth Circuit held that a defendant could not appeal the denial of First Step Act relief because § 3742 does not apply to those denials.
In County of San Mateo v. Chevron Corp., the Ninth Circuit held that energy companies could not remove several climate-change suits to federal court via 28 U.S.C. § 1442, the federal-officer removal statute. The court also reaffirmed the narrow scope of remand appeals under 28 U.S.C. § 1447(d). The Ninth Circuit held in 2006 that the scope of these appeals is limited to the express exceptions in § 1447(d); the court lacks jurisdiction to review any other proffered grounds for removal. San Mateo saw no reason to deviate from that holding.
The Fourth Circuit recently reached the same conclusion as San Mateo. But a circuit split exists on this issue. The San Mateo opinion acknowledged this split and expressed some receptiveness to the other side. And a recent cert petition from the Fourth Circuit’s decision asks the Supreme Court to resolve the matter.
In Affinity Living Group, LLC v. StarStone Specialty Insurance Co., a divided Fourth Circuit held that it had appellate jurisdiction despite the parties’ stipulating to dismiss some claims without prejudice. The district court had issued a decision that necessarily—though not technically—resolved all of the claims, including the voluntarily dismissed ones. The decision dismissed two of the plaintiff’s claims. And its reasoning necessarily decided the two others. That is, the district court’s dismissal of the two claims “rendered legally deficient” the remaining claims. So even though the district court never formally dismissed the remaining claims, their dismissal was inevitable. The parties thus saved everyone some time by stipulating to their dismissal.
This is what Microsoft Corp. v. Baker should have said. Baker rightly held that plaintiffs in a class action cannot voluntarily dismiss their individual claims and then appeal the earlier denial of class certification. Although the denial of class certification might have made pursuing those individual claims economically irrational, it did not necessarily resolve them. The plaintiffs could have kept going. That’s why they shouldn’t have been able to manufacture an interlocutory appeal by voluntarily dismissing their claims. But when an interlocutory decision means that there’s nowhere else for plaintiffs to go—that their claims, though technically pending, are legally done—there’s no reason to not allow an appeal via voluntary dismissal.
Last week saw a few decisions of note. The Fourth Circuit cleaned up its law on appealing dismissals without prejudice, deeming its 2015 decision in Goode v. Central Virginia Legal Aid Society, Inc. to be bad law. The First Circuit held that it could address whether the Board of Immigration Appeals deviated from its settled course of adjudication in reviewing the denial of sua sponte reopening. (In doing so, the court held contrary to a Ninth Circuit decision from last week.) The Third Circuit held that it could review a denial of arbitration even though that denial was based on disputed fact issues. And two courts dismissed qualified-immunity appeals that sought to challenge whether genuine fact issues precluded immunity.
In Bing v. Brivo Systems, LLC, the Fourth Circuit clarified its law governing appeals from dismissals without prejudice due to insufficient pleadings. In a series of decisions, that court had laid out a framework for when those dismissals are final and appealable. Relevant considerations included whether the defects in a complaint could be cured, whether the district court dismissed the complaint or the entire action, and whether the plaintiff decided to stand on the dismissed complaint. But a more recent decision—Goode v. Central Virginia Legal Aid Society, Inc.—had applied a more restrictive approach to appeals involving pleading deficiencies.
Bing required the Fourth Circuit to clarify the law governing these appeals. The court ultimately held that Goode was inconsistent with earlier Fourth Circuit decisions and must be disregarded. In a footnote, the court also pointed to an easier path: deeming an appeal from these dismissals an implicit waiver of the right to amend. Doing so would avoid the finality problems that dismissals without prejudice can create, would protect plaintiffs’ right to appeal, and would create certainty over appellate jurisdiction.
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