The Fifth Circuit allows government officials to appeal discovery orders that reject claims of privilege without being held in contempt. It probably shouldn’t.
August 26, 2019
In last week’s Stallworth v. Bryant, the Fifth Circuit allowed Mississippi legislators to appeal a discovery order that rejected their claim of legislative privilege. It appears that those legislators were never held in contempt. This is odd; litigants normally must first be held in contempt for disobeying a discovery order before they can appeal it. But a little digging showed that appellate jurisdiction came from a line of (relatively old) Fifth Circuit decisions that allow immediate appeals from denials of governmental privileges.
These older Fifth Circuit decisions are questionable. Actually, I think they’re wrong—wrong when they were decided and particularly wrong since Mohawk Industries, Inc. v. Carpenter.
An absurd application of the dismissals-without-prejudice rule means that a case is over in the district court but not final—and never can be final—for appeal.
August 18, 2019
Update: The Fifth Circuit granted rehearing en banc, and argument is scheduled for January 23, 2020.
I’ve jokingly characterized the Supreme Court’s decision in Microsoft v. Baker as creating a zombie action: one that is over in the district court but not final—and never will be final—for purposes of appeal. (The joke kills at cocktail parties.) This oddity is made possible by building most of the rules for federal appellate jurisdiction on interpretations of the term “final decisions.” Sometimes oddities like this produce pragmatically sound outcomes. The ultimate decision in Baker, for example, made practical sense.
Now the Fifth Circuit has created another zombie action—Williams v. Taylor Seidenbach, Inc. And this one makes zero sense. It’s absurd. And it needs to be reversed en banc.
Koh v. Ustich shows the need to screen fact-based qualified-immunity appeals before they impose unnecessary costs and delays in civil rights cases.
August 16, 2019
In Koh v. Ustich, the Seventh Circuit dismissed a qualified-immunity appeal because all of the defendants’ arguments disputed the version of facts assumed by the district court. It was an undoubtedly correct decision. But the appeal appears to be another unfortunate example of imposing unnecessary delay and expense on plaintiffs’ civil rights claims for no good reason. This can happen because the law governing qualified-immunity appeals is not conducive to early screening of improper appeals.
The Fifth Circuit issued a sharp reminder of the jurisdictional limits on addressing the genuineness of fact disputes in qualified-immunity appeals.
August 11, 2019
In King v. LeBlanc, the Fifth Circuit dismissed a qualified-immunity appeal that challenged only the district court’s determination that a genuine fact issue existed as to the officer’s deliberate indifference. This far-too-common practice of challenging the facts in qualified-immunity appeals wastes a lot of time for courts and plaintiffs. In King, the Fifth Circuit was quick to remind defendants that it lacks jurisdiction over these arguments. But are reminders enough?
The Tenth Circuit held that a criminal sentence is final and appealable despite the existence of outstanding restitution issues.
August 11, 2019
In United States v. Paup, the Tenth Circuit held that it had jurisdiction to review a district court order remanding a criminal sentence to a magistrate judge. The remand order did not affect the conviction or sentence and left open only the amount of a restitution order. It was accordingly a final decision that was immediately appealable.
A district court ordered arbitration and dismissed—rather than stayed—the underlying action. This allowed an appeal from an order compelling arbitration.
August 11, 2019
In Jaludi v. Citigroup, the Third Circuit heard a plaintiff’s appeal from an order compelling arbitration of all of the plaintiff’s claims. The case is another illustration of a district court dismissing—rather than staying—an action after ordering arbitration to proceed. And it’s one that circumvents the normal limits on arbitration appeals.
The Third Circuit’s “Forbes rule” requires that district courts explain why they’re denying qualified immunity. Other courts should take note.
August 11, 2019
One issue that makes jurisdiction over interlocutory qualified-immunity appeals so maddening is the uncertain scope of review. The Supreme Court’s decision in Johnson v. Jones says that courts of appeals are not supposed to review the district court’s conclusion that genuine fact issues exist. Appellate courts should instead take the district court’s assumed facts as given and ask whether those facts make out a clear constitutional violation. But this isn’t always easy, especially if the district court doesn’t explain the facts it assumed in denying qualified immunity.
The Third Circuit has addressed these difficulties with a supervisory rule requiring district courts to explain their denials of qualified immunity at summary judgment. And a recent concurrence from that court’s Chief Judge, D. Brooks Smith, emphasized the importance of this supervisory rule. As I argued in a recent article, other courts—and perhaps even the Rules Committee—should consider the Third Circuit’s practice.
A few Sixth Circuit cases hold that the scope of review in qualified-immunity appeals extends to all legal questions. That can’t be right.
July 26, 2019
The courts of appeals often wrestle the scope of their jurisdiction in interlocutory qualified-immunity appeals. One source of trouble is the need to reconcile the Supreme Court’s decisions in Johnson v. Jones and Scott v. Harris. As I’ve written about before, Johnson limits the scope of most qualified-immunity appeals to addressing only whether the facts assumed by the district court make out a clear constitutional violation; appellate courts generally lack jurisdiction to review whether the summary-judgment record supports those assumed facts. And most courts have read Scott to create an exception to this jurisdictional limit when something in the summary-judgment record blatantly contradicts the district court’s assumed facts.
But other ways of reconciling Johnson and Scott exist. Yesterday’s decision from the Sixth Circuit in Peterson v. Heymes illustrates what I call the “legal-issues” interpretation. Under this reading of Scott, the courts of appeals have jurisdiction to address all legal questions in a qualified-immunity appeal.
But that rule can’t be correct. It would effectively overrule Johnson. And it doesn’t make much sense.
Alan B. Morrison addresses the recent use of mandamus petitions in the emoluments suits and the alternative of discretionary interlocutory appeals.
July 22, 2019
The following guest post is by Alan B. Morrison. Mr. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School, where he teaches civil procedure. He is also the co-author, with Howard Eisenberg, of an article dealing with similar appeal issues: Discretionary Appellate Review of Non-Final Orders: It’s Time To Change the Rules, 1 Journal of Appellate Practice & Process 285 (1999) (PDF, 1.3 MB).
On July 10, 2019, the Fourth Circuit unanimously ruled that the State of Maryland and the District of Columbia lack standing to challenge President Donald J. Trump’s alleged failure to comply with the Foreign Emoluments Clause of Article I, section 9, clause 8 of the Constitution, which forbids any officer of the United States from accepting any “present, Emolument, Office or Title . . . from any King, Prince, or foreign State.” I shall not debate the merits of the standing question, which is currently pending in other similar, but different contexts in the Second and D.C. Circuits, nor the meaning of the Emoluments Clause, which is at least within the realm of Congress, should it embark on impeachment or seek to legislate in that area. Instead, being a civil procedure nerd, I want to focus on the Fourth Circuit’s use of mandamus to reach the standing issue and what that spells for the future of appellate jurisdiction in the federal courts.
Will the district court certify the Congress’s emoluments suit for an immediate appeal? Or will the D.C. Circuit use mandamus to order certification?
July 22, 2019
Update, September 4, 2019: Back before the district court, the court certified its decisions for an immediate appeal under § 1292(b). Trump then petitioned to appeal, and on September 4, 2019, the D.C. Circuit granted the petition.
In the emoluments suit brought by members of Congress, the D.C. Circuit tried to avoid weighing in on whether it can order a district court—via a writ of mandamus—to certify an order for immediate appeal under 28 U.S.C. § 1292(b). But it effectively did so; the court of appeals said that the district court was wrong to deny certification, and it “remand[ed] the matter to the district court for immediate reconsideration.” The panel appears to hope that the district court will certify the decision for an immediate appeal and thus avoid any dispute over the appellate court’s mandamus power. It’s essentially a game of appellate-jurisdiction chicken.