Posts in category “Appellate Decisions”
In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court. So in their interlocutory qualified-immunity appeal, the Fourth Circuit concluded that the issue had been forfeited. In the course of doing so, the Fourth Circuit rejected the argument that the Bivens issue (like jurisdictional issues) could not be waived or forfeited. The court also dismissed the defendants’ fact-based challenges to the denial of qualified immunity.
In Strange v. Islamic Republic of Iran, the D.C. Circuit held that district courts cannot “recertify” an order and thereby restart the ten-day window for seeking permission to appeal under 28 U.S.C. § 1292(b). The district court in Strange had rejected the plaintiffs’ efforts to serve process on former President of Afghanistan Hamid Karzai via Twitter. The district court also certified that decision for an immediate appeal. But the plaintiffs missed the deadline for filing their petition to appeal. So the district court recertified its decision and the plaintiffs filed a timely petition. The D.C. Circuit held that this practice of recertifying orders was nothing more than an improper attempt to extend the deadline for seeking permission to appeal under § 1292(b). That deadline is jurisdictional, and courts cannot extend it. So the recertification was ineffective, and the petition to appeal was late.
The D.C. Circuit thus joined the Seventh Circuit in rejecting the tactic of restarting the § 1292(b) clock by recertifying an order. Until recently, several other courts (and Federal Practice & Procedure) have sanctioned this tactic. But courts have had to reexamine the issue in light of the Supreme Court’s recent efforts to delineate which rules are (and aren’t) jurisdictional. For now, a circuit split exists. But other circuits will probably have to wrestle with this issue soon.
Another court of appeals has weighed in on the scope of remand appeals. 28 U.S.C. § 1447(d) generally prohibits appellate review of orders remanding an action to state court. But it includes two express exceptions: when an action is removed under the federal-officer or civil-rights removal statutes. Recent climate-change litigation has required the courts of appeals to address the scope of remand appeals when one of those exceptions applies. And they’ve held that the scope of appellate review includes only the exceptions; the court of appeals cannot address any other proffered ground for removal.
This week, the Tenth Circuit reached the same conclusion in its own climate-change appeal. In Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., the court held that it could review only whether removal was proper under the federal-officer removal statute and not any other ground for removal. The opinion is probably the most thorough (and, in my opinion, convincing) recent analysis of the issue. The court walked through § 1447(d)’s text and context, similar statutes, cases interpreting those statutes, the presumption against jurisdiction, practical considerations, and § 1447(d)’s underlying purpose. But like the other recent decisions on the scope of remand appeals, we should expect a petition for rehearing en banc or cert (or both) in the near future.
The Fifth Circuit’s finality trap has another victim. In Firefighters’ Retirement System v. Citco Group Ltd., the court held that the district court had not issued a final, appealable decision when claims against one defendant had been dismissed without prejudice. To appeal, the plaintiffs needed to obtain a certification under Federal Rule of Civil Procedure 54(b) (and will presumably be allowed to do so).
Firefighters’ Retirement is thus another illustration of the Fifth Circuit’s foolish finality trap. Unlike other recent finality trap cases, the dismissal without prejudice in Firefighters’ Retirement came between with-prejudice dismissals. But the plaintiffs were trying to appeal a district court decision that came before the dismissal without prejudice. And that was enough to preclude finality. The Fifth Circuit declined to address what would happen if claims were dismissed without prejudice before the decision that a party sought to appeal.
Qualified immunity makes it especially—and unjustifiably—difficult for plaintiffs to prevail in civil-rights suits. And the special appellate procedures that accompany qualified immunity ensure that litigating those suits will be complicated, expensive, and time consuming. Defendants have a right to appeal from the denial of immunity. That right—standing alone—is an immense procedural hurdle for plaintiffs. It gets worse; courts have steadily expanded the scope and availability of these appeals in ways that can grind civil-rights litigation to a halt.
Efforts are afoot to reform or abolish qualified immunity. And for good reason. But the prospects for change are uncertain. So long as qualified immunity remains in its present or an altered form, there is another tactic worth considering: going after the appeals. In a series of recent posts, I have explored the doctrinal and practical problems of qualified-immunity appeals. Here, I bring those posts and other sources together to suggest that reforming qualified-immunity appeals should at least be considered alongside efforts at reforming or abolishing the substantive defense. I don’t know what the best strategy for attacking qualified immunity is. But if qualified immunity sticks around, we need to fix the appeals.
In United States v. Rutherford, a divided Seventh Circuit held that a motion to reconsider the denial of First Step Act relief extended the time for filing a notice of appeal. The majority concluded that these motions were common law motions to reconsider. And common law motions to reconsider in criminal cases extend the time for appealing; the motion makes the judgment non-final, and the judgment becomes final only after the district court resolves the motion. Dissenting, Judge Barrett contended that the motion for reconsideration was one under Federal Rule of Criminal Procedure 35. And Rule 35 motions to not extend the time for appealing.
Judge Barrett ended her dissent by pointing out that the court’s decision was non-precedential. So the Seventh Circuit might have to reckon with this issue again.
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.
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.
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.
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