Posts in category “Appellate Decisions”
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.
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.
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.
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.
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.
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.
The Fourth Circuit took the extraordinary (and possibly improper) step today of directing a district court—via a writ of mandamus—to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). It did so in one of two interlocutory appeals in Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump. In both, the Fourth Circuit held that Maryland and D.C. lacked standing to bring their claims. And in both, the court had to address its jurisdiction over the appeals.
One appeal (PDF, 39 KB) involved a relatively straightforward collateral-order appeal from the effective denial of absolute immunity. But to hear the other appeal (PDF, 106 KB), the Fourth Circuit had to use mandamus to direct the district court to certify an immediate appeal. This use of mandamus is extremely rare, and it’s not clear that it’s is a proper use of the writ.
In Dominion Energy, Inc. v. City of Warren Police and Fire Retirement System (PDF, 147KB), the Fourth Circuit announced a non-exhaustive list of things it would consider in deciding whether to allow an appeal from an order remanding a class action to state court. These criteria are the same as those that several other courts of appeals use. The Fourth Circuit went on to accept an appeal to address whether claims for aiding or abetting the breach of a fiduciary duty fall within CAFA’s removal exceptions. It ultimately held that they didn’t.
The federal courts’ ongoing project of delineating which procedural rules are jurisdictional and which aren’t (and are instead claim-processing rules) continues.
The Seventh Circuit held this week that 28 U.S.C. § 2107(c)’s excusable neglect/good cause requirement for an extension of the appeal-filing deadline is jurisdictional. And the Tenth Circuit applied an earlier decision holding that administrative exhaustion of arguments under the Black Lung Benefits Act is jurisdictional, though the panel appeared to doubt that earlier decision.
In Hamer v. Neighborhood Housing Services of Chicago, the Supreme Court offered a convenient shorthand for determining whether an appeal-filing time limit is jurisdictional: those prescribed by statutes are, but those found only in court-made rules are not. Bankruptcy’s appeal-filing deadline is a bit of both. 28 U.S.C. § 158(c)(2) says a notice of appeal must be filed within an amount of time set by Bankruptcy Rule 8002, which in turn specifies a 14-day filing deadline. After the Supreme Court’s decision in Bowles v. Russell, several courts of appeals held that Rule 8002’s filing deadline was jurisdictional. But after Hamer, litigants are again challenging the rule’s jurisdictional nature. So far they’ve been unsuccessful.
The Tenth Circuit just held in In re Robertson that this appeal-filing deadline is jurisdictional. And it was the first court of appeals to do so since Hamer.
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