Posts in category “Appellate Decisions”

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.)…

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.…

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.…

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.…

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.…

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).…

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.…

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.…