Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.
October 5, 2024
September saw yet another court of appeals split over whether federal officials can immediately appeal the Bivens question without a qualified-immunity appeal. I’ve been following this issue for a while, and at least one more court of appeals is poised to address it. I won’t be surprised to see some cert petitions on this matter in the not-too-distant future.
In other developments, the Second Circuit held that Rule 4(a)(4) is a mandatory claims-processing rule, meaning that a court cannot excuse a failure to comply with it. The Tenth Circuit again failed to apply the Rule 3(c) amendments to a notice of appeal, instead limiting the scope of appeal to the order designated in the notice. And the Second Circuit addressed the state-sponsored terrorism bar to appeals from denials of foreign sovereign immunity. Plus the scope of remand appeals, the prison-mailbox rule applied to electronic filing, and more.
- Yet Another Split Rejection of Pure Bivens Appeals
- Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)
- Another Failure to Apply the Rule 3(c) Amendments
- The Second Circuit on Foreign-Sovereign-Immunity Appeals & the Appellate Bar for State-Sponsored Terrorism
- The Scope of Remand Appeals After Untimely § 1442 Removals
- Applying the Prison-Mailbox Rule to Electronic Filing
- The Month’s Improper Qualified-Immunity Appeals
- Quick Notes
Yet Another Split Rejection of Pure Bivens Appeals
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.
In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.
So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.
Read more: Yet Another Split Rejection of Pure Bivens Appeals.
Garraway v. Ciufo, 2024 WL 4020022 (9th Cir. Sep. 3, 2024), available at the Ninth Circuit and Westlaw
Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)
In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.
Read more: Serving, Filing, and Equitable Exceptions to Rule 4(a)(4).
Malek v. Feigenbaum, 2024 WL 4138389 (2d Cir. Sep. 11, 2024), available at CourtListener and Westlaw
Another Failure to Apply the Rule 3(c) Amendments
Malek wasn’t alone in its dated discussion of orders designated in a notice of appeal. In Smith v. Commissioner, the Tenth Circuit again failed to apply the recent amendments to Federal Rule of Appellate Procedure 3(c) and limited the scope of an appeal to the orders designated in a notice of appeal.
I don’t have much to say beyond what I’ve said in numerous posts on this site about failures to apply the amended Rule 3(c), many of which I just linked to.
Smith v. Commissioner, SSA, 2024 WL 4249522 (10th Cir. Sep. 20, 2024), available at the Tenth Circuit and Westlaw
The Second Circuit on Foreign-Sovereign-Immunity Appeals & the Appellate Bar for State-Sponsored Terrorism
In In re Terrorist Attacks on September 11, 2001, the Second Circuit held that 28 U.S.C. § 1605A(f) bars foreign-sovereign-immunity appeals under the collateral-order doctrine.
The Foreign Sovereign Immunity Act shields foreign states from litigation in several contexts. The courts of appeals have held that if a district court denies immunity under the Act, the foreign state can immediately appeal that denial via the collateral-order doctrine.
But § 1605A waives immunity in cases of state-sponsored terrorism. And subsection (f) of that provision bars interlocutory appeals except those under 28 U.S.C. § 1292(b):
In an action brought under this section, appeals from orders not conclusively ending the litigation may only be taken pursuant to section 1292(b) of this title.
The Second Circuit held that subsection (f) bars appeals under the collateral-order doctrine. This appellate bar applied to all interlocutory orders—not just specific issues addressed in those orders. And the provision’s plain text barred any appellate review except for certified appeals under § 1292(b).
In re Terrorist Attacks on September 11, 2001, 2024 WL 4019003 (2d Cir. Sep. 3, 2024), available at CourtListener and Westlaw
The Scope of Remand Appeals After Untimely § 1442 Removals
In Blumberger v. Tilley, the Ninth Circuit held that the scope of remand appeal was plenary even if a § 1442 removal was untimely.
Although 28 U.S.C. § 1447(d) generally bars appellate review of remand orders, there is an exception when a remand is based on federal-officer removal under 28 U.S.C. § 1442. And if removal is based at least in part on federal-officer removal, an appellate court can review all proffered grounds for removal.
In Blumberger, the defendant removed an action from state court, arguing that federal subject-matter jurisdiction existed under either § 1442 or 42 U.S.C. § 233, which applies to certain actions against commissioned officers or employees. But the § 1442 removal might have been untimely. The Ninth Circuit nevertheless concluded that it could review whether removal was proper under § 1442 or § 233. The court explained that § 1447(d)’s exception for federal-officer removal permits review of an entire remand order. There is no requirement that the invocation of federal-officer removal be proper.
Blumberger v. Tilley, 2024 WL 4113840 (9th Cir. Sep. 9, 2024), available at the Ninth Circuit and Westlaw
Applying the Prison-Mailbox Rule to Electronic Filing
In Webb v. Department of Justice, the Third Circuit applied the prison-mailbox rule to documents filed electronically by prison staff.
The prison-mailbox rule—which is codified in Federal Rule of Appellate Procedure 4(c)—provides that an incarcerated appellant’s notice of appeal is timely so long as the notice is “deposited in the institution’s internal mail system on or before the last day for filing.” This rule developed against a backdrop of paper filing. But the system in Webb required depositing filings in a prison mailbox, after which prison officials would scan and electronically file the documents.
The Third Circuit noted that it had not applied the prison-mailbox rule to a system in which documents were electronically filed. But the court saw no reason why electronic filing would “disturb[] the underlying legal principle.” “The Supreme Court developed the prison mailbox rule because incarcerated litigants lose control of their legal submissions as soon as they give them to prison officials.” Given that purpose, there is “no meaningful distinction between inmate filings that prison staff submit to the court electronically and those that are delivered on paper.”
The Third Circuit accordingly agreed with the Seventh Circuit in holding that “a pro se prisoner’s legal documents are considered filed on the date that they’re tendered to prison staff in accordance with reasonable prison policies, regardless of whether they are ultimately mailed or uploaded electronically.” (Quotation marks omitted.)
Webb v. Department of Justice, 2024 WL 4312737 (3d Cir. Sep. 27, 2024), available at the Third Circuit and Westlaw
The Month’s Improper Qualified-Immunity Appeals
Here are last month’s improper, fact-based qualified-immunity appeals:
- Brown v. Dickey, 2024 WL 4023245 (1st Cir. Sep. 3, 2024), available at the First Circuit and Westlaw
- Dunn v. Does 1–22, 2024 WL 4050338 (8th Cir. Sep. 5, 2024), available at the Eighth Circuit and Westlaw
- Ambler v. Nissen, 2024 WL 4130099 (5th Cir. Sep. 10, 2024), available at the Fifth Circuit and Westlaw
- Harris v. Tioga County, 2024 WL 4179651 (2d Cir. Sep. 13, 2024), available at CourtListener and Westlaw
- Sanders v. Newton, 2024 WL 4282907 (8th Cir. Sep. 25, 2024), available at the Eighth Circuit and Westlaw
Thanks to Karen Blum for sending Brown v. Dickey my way.
Quick Notes
In Greer v. Strange Honey Farm, LLC, the Sixth Circuit held that the subsequent with-prejudice dismissal of all claims saved a notice of appeal filed after the district court had resolved only some of the claims. The court added that the district court could dismiss the pending claims despite the notice of appeal. Although a notice of appeal normally divests a district court of jurisdiction, that divestiture does not bar steps the district court takes to aid the appellate process. And the subsequent dismissal resolved any appellate-jurisdiction issues, thereby aiding the appellate process.
Greer v. Strange Honey Farm, LLC, 2024 WL 4100249 (6th Cir. Sep. 6, 2024), available at the Sixth Circuit and Westlaw
And in Johansen v. Liberty Mutual Group Inc., the First Circuit used hypothetical appellate jurisdiction to avoid deciding whether an unresolved attorneys-fees issue precluded finality.
Johansen v. Liberty Mutual Group Inc., 2024 WL 4284641 (1st Cir. Sep. 25, 2024), available at the First Circuit and Westlaw