Dissolving injunctions, unspecified amounts of damages, allegedly sua sponte remands, garnishment appeals in criminal cases, and more.
May 4, 2021
Lots to talk about from last week. There was a split decision over whether the passage of time amounts to a changed circumstance that can support an injunction appeal. The Eleventh Circuit held that a party should have appealed before the district court amended its judgment to specify the amount of damages, as that amount was easy to calculate from the district court’s decision. The Eleventh Circuit also addressed its jurisdiction to review sua sponte remand orders and decisions involving payments to or from a district court’s registry. The Fifth Circuit held that an appeal from a final criminal judgment does not encompass a subsequent garnishment order. That court also continued to express some doubt about Scott v. Harris’s blatant-contradiction exception to the normal limits on qualified-immunity appeals.
In cert-stage developments, there are two new petitions of note. One asks if immigration’s exhaustion requirement is jurisdictional. Another asks the court to address the appellate jurisdiction of the Foreign Intelligence Surveillance Court of Review. And the Supreme Court denied a petition asking what to do with post-Hall appeals from pre-Hall judgments.
Plus an appeal involving a district court’s post-appeal explanation for a decision and a notice of appeal that failed all of the content requirements.
- A Split Eighth Circuit Held That the Passage of Time Alone Was a Changed Circumstance for Challenging a Preliminary Injunction
- The Eleventh Circuit Said a Litigant Needed to Appeal Despite an Outstanding—though Straightforward—Damages Calculation
- The Fifth Circuit Refused to Consider a Garnishment Order in an Appeal From a Criminal Judgment
- The Fifth Circuit Again Questioned the Blatant-Contradiction Exception for Qualified-Immunity Appeals
- The Eleventh Circuit on Appeals From Sua Sponte Remand Orders
- The Sixth Circuit on District Court’s Post-Appeal Opinions Explaining Appealed Decisions
- The Ninth Circuit Dismissed an Appeal That Utterly Failed the Content Requirements for a Notice of Appeal
- The Eleventh Circuit on the Appealable Aspects of Orders Concerning Payments to or From the Court’s Criminal Justice Act Registry
- A New Cert Petition on the Jurisdictionality of Immigration’s Exhaustion Requirement
- A New Cert Petition on FISA Access and FISA-Court Jurisdiction
- Cert Denied on Post-Hall Appeals From Pre-Hall Judgments
A Split Eighth Circuit Held That the Passage of Time Alone Was a Changed Circumstance for Challenging a Preliminary Injunction
In Ahmad v. City of St. Louis, a split Eighth Circuit panel held that the passage of time can be a sufficiently changed circumstance to warrant revisiting a preliminary injunction, such that refusal to alter the injunction was appealable. Judge Erickson disagreed and would have treated the purported motion to dissolve as a non-appealable denial of a motion to reconsider.
Ahmad arose from the protests that followed the acquittal of former St. Louis police officer Jason Stockley in fall 2017. The plaintiffs—who had been maced, had their phone seized, or been exposed to tear gas—brought a variety of constitutional claims against St. Louis. The plaintiffs also sought a preliminary injunction against unconstitutional police conduct. The district court granted that injunction, and the city did not appeal. Three years later, after attempts at mediation had failed, St. Louis moved to dissolve the preliminary injunction. The district court denied that motion. The city then appealed.
Under 28 U.S.C. § 1292(a)(1), litigants can immediately appeal from (among other things) orders “granting, . . . or refusing to dissolve or modify injunctions.” To move to dissolve a preliminary injunction, a party must show changed circumstances. If nothing has changed, then a challenge to an existing injunction is nothing more than a motion for reconsideration. And the denial of a motion to reconsider a preliminary injunction is not independently appealable. Otherwise litigants could endlessly multiply the opportunities to appeal from preliminary injunctions via serial motions for reconsideration.
In Ahmad, the majority treated the district court’s decision as a refusal to dissolve an injunction. To be sure, St. Louis largely attempted to re-argue its initial opposition to the preliminary injunction. But there was one changed circumstance: the passage of time. The three years between the preliminary injunction and the city’s motion, the court said, “present[ed] a dramatic case of ‘changed circumstances.’” And although the district court was justified in entering a preliminary injunction pending a prompt trial on the merits, that prompt trial has not occurred. The Eighth Circuit then ordered the district court to complete a trial on the merits within six months or dissolve the preliminary injunction.
Judge Erickson dissented in part. (The case also involved a class-certification appeal under Federal Rule of Civil Procedure 23(f), and Judge Erickson concurred in the court’s decision vacating the grant of class certification.) As Judge Erickson saw things, the city’s motion was nothing more than a motion to reconsider. The city did not identify any changes in the facts or law that might warrant dissolving the injunction. And Judge Erickson thought that the passage of time alone did not amount to a changed circumstance that could warrant dissolving an injunction. Further, the reasons for the three-year delay—including the COVID-19 pandemic and protests last summer—were “unique circumstances that are unlikely to be replicated in the future.”
Ahmad v. City of St. Louis, 2021 WL 1619496 (8th Cir. Apr. 27, 2021), available at the Eighth Circuit and Westlaw.
The Eleventh Circuit Said a Litigant Needed to Appeal Despite an Outstanding—though Straightforward—Damages Calculation
In Floyd v. Sallie Mae, Inc., the Eleventh Circuit dismissed as untimely an appeal that was filed after the district court amended the judgment to specify the amount of damages.
Floyd was a Telephone Consumer Protection Act case in which the plaintiff sought statutory damages for improper pre-recorded voicemails. The defendant eventually moved for summary judgment. And in December 2018, the district court largely granted it. The evidence showed that the defendant had made only 28 calls to the plaintiff. But those 28 calls violated the Act. Although the plaintiff had not cross-moved for summary judgment, the district court concluded that the defendant was liable for those 28 calls, and the plaintiff was entitled to $500 in statutory damages for each call.
About a year later, in December 2019, the district court entered a final judgment. (The opinion does not give any reason for the year-long delay.) But that judgment did not specify the exact amount of damages. About six months later, in June 2020, the district court amended the judgment to state that the plaintiff was entitled to $14,000 in damages. Thirty days later, the plaintiff appealed, challenging the partial grant of summary judgment to the defendant.
The Eleventh Circuit dismissed the appeal as untimely. The court concluded that the district court’s decision was final and appealable in December 2018, when the district court decided the defendant’s summary-judgment motion. That decision resolved the defendant’s liability and included all necessary information for calculating damages.
The lack of an exact damages amount did not change this analysis. The Eleventh Circuit invoked the ministerial/technical exception to the final-judgment rule, which states that a district court decision is final despite an outstanding issue as to the amount of damages when calculating those damages would be a straightforward ministerial or technical task. The district court’s summary-judgment decision said that the plaintiff got $500 for each of 28 infringing calls. The district court’s failure to then do the math did not prevent its decision from being final.
I don’t recall a court ever using the ministerial/technical exception to dismiss an appeal. I’ve only seen the exception used to say that an appeal filed before the district court calculated the amount of damages was sufficiently final. That way the court of appeals does not have to dismiss the appeal for the district court to complete a straightforward mathematical task, after which the parties will appeal all over again. Floyd is, to my knowledge, unique in saying that a decision was final and needed to be appealed despite an outstanding damages calculation.
Floyd v. Sallie Mae, Inc., 2021 WL 1625515 (11th Cir. Apr. 27, 2021), available at the Eleventh Circuit and Westlaw.
The Fifth Circuit Refused to Consider a Garnishment Order in an Appeal From a Criminal Judgment
In United States v. Onyeri, the Fifth Circuit determined that it could not review a garnishment order in an appeal from the judgment in a criminal case.
The defendant in Onyeri was found guilty of several RICO violations, and the district court ordered restitution as part of his sentence. The defendant timely appealed his conviction and sentence. Shortly thereafter, the defendant’s father—a former teacher—died. The defendant was then set to receive an annuity from the Teacher Retirement System of Texas. But the district court garnished that annuity to pay the defendant’s restitution. The defendant did not amend his notice of appeal or file a new one after the garnishment decision. On appeal, the defendant argued (among other things) that the annuity was exempt from garnishment.
The Fifth Circuit determined that it lacked jurisdiction over that issue. Invoking the Supreme Court’s recent decision in Manrique v. United States, the Fifth Circuit held that criminal defendants cannot use an appeal from a final criminal judgment to challenge a related garnishment order. Manrique held that a notice of appeal filed after entry of a custodial sentence but before a restitution order was not effective to appeal the latter restitution order. In other words, a deferred restitution order produces two appealable decisions, not one. And the defendant needs to file a notice of appeal after the restitution order for the court of appeals to have jurisdiction over it.
Manrique’s reasoning applied just as much—if not more—to a garnishment order. After all, the garnishment order was arguably part of a separate civil proceeding. “It would make little sense to require a second notice of appeal for issues within the same core proceeding but to permit an appeal from that same criminal matter to extend to collateral issues.” And the Fifth Circuit has for some time “recognized judgments of conviction and sentencing as distinct from final orders of garnishment.”
So the defendant needed to separately appeal from the garnishment decision. His failure to do so deprived the Fifth Circuit of jurisdiction to review that order.
United States v. Onyeri, 2021 WL 1657508 (5th Cir. Apr. 28, 2021), available at the Fifth Circuit and Westlaw.
The Fifth Circuit Again Questioned the Blatant-Contradiction Exception for Qualified-Immunity Appeals
In Hinson v. Martin, the Fifth Circuit rejected a defendant’s efforts to challenge the factual basis for a denial of qualified immunity. In doing so, the court again questioned whether Scott v. Harris created a “blatant-contradiction” exception to the general prohibition on reviewing the factual basis for qualified-immunity denials.
The plaintiff in Hinson sued a police officer for excessive force, alleging that the officer ordered a police dog to repeatedly bite the plaintiff, even though the plaintiff had submitted to the officer after the dog’s first bite. The officer sought qualified immunity and argued that the evidence showed only a single, justified dog bite. The district court denied immunity, and the officer appealed.
That appeal, however, “largely turned on a factual dispute—whether the dog bit the plaintiff more than once, especially whether the officer caused the dog to bite the plaintiff after the plaintiff had been subdued and handcuffed and no longer posed a threat.” (Cleaned up.) And that was a problem. Although defendants have a right to immediately appeal from the denial of qualified immunity, Johnson v. Jones holds that those appeals have a narrow scope when the appeal comes from the denial of summary judgment. With rare and narrow exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.
Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. That was the case in Hinson. But the officer in Hinson also tried to invoke one of the exceptions to this general rule: the blatant-contradiction exception. Most courts of appeals have read the Supreme Court’s decision in Scott v. Harris to create such an exception: when something in the summary-judgment record “blatantly contradicts” the facts that the district court thought a reasonable jury could find, the court of appeals can ignore the district court’s conclusions and review the record de novo. Side note: the blatant-contradiction exception is a bad rule.
The Fifth Circuit has not fully embraced this exception. It continued to express some doubt in Hinson. The court noted that “[t]he Scott Court’s permissive approach to some questions about the genuineness of a factual dispute (those involving video footage that blatantly contradicts one party’s version of events) does not easily square with the ruling in Johnson v. Jones.” But the court did not need to resolve the existence or extent of the Scott exception. The officer’s evidence fell well short of blatantly contradicting the plaintiff’s version of events. So even if the exception existed, it would not apply.
With no blatant contradictions, the officer’s appeal devolved largely into an improper dispute over the facts. And the officer’s reliance on his own version of the facts left little to address when it came to the excessive-force claim:
Because the officer maintains that there was only a single bite (and relies almost exclusively on appeal on the argument that the district court erred by finding a genuine issue of material fact as to whether there were subsequent bites—a claim we have no jurisdiction to evaluate), he offers no explanation that could justify ordering the dog to bite the plaintiff after the plaintiff was subdued.
(Cleaned up.) The Fifth Circuit accordingly affirmed the denial of qualified immunity on the excessive-force claim.
Hinson v. Martin, 2021 WL 1711804 (5th Cir. Apr. 29, 2021), available at the Ninth Circuit and Westlaw.
The Eleventh Circuit on Appeals From Sua Sponte Remand Orders
In MSP Recovery Claims v. Hanover Insurance Co., the Eleventh Circuit dismissed a cross-appeal that challenged a remand order, rejecting the defendants’ argument that a remand is sua sponte if the district court’s reasoning differs from that in the motion to remand.
MSP Recovery Claims involved several insurance disputes that were originally filed in Florida state court. The defendants removed the suits to federal court, and the plaintiffs promptly responded with motions to remand due to a lack of diversity jurisdiction. The suits were “pure bills of discovery,” filed to obtain information on the proper defendants and legal theories for future lawsuits. The plaintiffs accordingly argued that the suits failed diversity jurisdiction’s amount-in-controversy requirement. The district court agreed and remanded the suits to state court. The district court also denied the plaintiffs’ request for fees and costs. The plaintiffs then appealed that denial, and the defendants cross-appealed to challenge the remand decision.
The Eleventh Circuit dismissed the cross appeal. 28 U.S.C. § 1447(d) generally bars appellate review of remands for a lack of subject-matter jurisdiction or on a timely motion to remand. But that general prohibition might not apply if a district court remands a case sua sponte—that is, on its own initiative. The defendants in MSP Recovery Claims argued that the remand was sua sponte because the district court remanded for reasons different than those that the plaintiffs asserted in their motions to remand.
The Eleventh Circuit rejected that argument, stating that it would not premise its jurisdiction “on purported disparities between the arguments in a timely motion to remand and the reasoning in a district court’s order granting that motion”:
Instead, when a plaintiff files a timely motion to remand that the district court grants, we will presume that it granted the motion because of the plaintiff’s arguments and not sua sponte. Unless that presumption is rebutted on the face of the district court’s order—for example, by a statement disagreeing with the arguments in the motion—we will not exercise jurisdiction to review the remand order.
The plaintiffs in MSP Recovery Claims timely moved to remand, and the district court granted their motions. And nothing rebutted the presumption that the remand was because of the plaintiffs’ arguments. The Eleventh Circuit accordingly lacked jurisdiction to review the remand.
MSP Recovery Claims v. Hanover Insurance Co., 2021 WL 1711594 (11th Cir. Apr. 30, 2021), available at the Eleventh Circuit and Westlaw.
The Sixth Circuit on District Court’s Post-Appeal Opinions Explaining Appealed Decisions
In United States v. Harvey, the Sixth Circuit refused to consider a district court’s post-appeal opinion explaining its reasons for denying compassionate release.
The defendant in Harvey sought compassionate release due to the spread of COVID-19 at his prison and his high-risk of infection. The district court denied the request without explanation, and the defendant appealed. In that appeal, he argued that the denial without explanation was inadequate. Three weeks after the defendant appealed—and one week after he filed his opening brief—the district court issued an opinion explaining its reasons for denying the release request.
On appeal, the Sixth Circuit refused to consider the district court’s post-appeal explanation. A notice of appeal transfers a case to the court of appeals and generally deprives the district court of jurisdiction. So once a party appeals, the district court normally cannot take any action related to the merits of the appeal. And none of the exceptions to that general rule—such as that for “an opinion that memorializes an oral ruling made days before”—applied. The district court’s opinion came three weeks after the notice of appeal. It also came one week after the defendant’s opening brief, which argued that the district court’s unexplained decision was inadequate. The opinion altered the case on appeal and was therefore “null and void.” The court of appeals could not consider it.
United States v. Harvey, 2021 WL 1661503 (6th Cir. Apr. 28, 2021), available at the Sixth Circuit and Westlaw.
The Ninth Circuit Dismissed an Appeal That Utterly Failed the Content Requirements for a Notice of Appeal
In Ditech Financial LLC v. Talasera and Vincanto Homeowners’ Association, the Ninth Circuit dismissed an appeal in which the appellant failed every content requirement for a notice of appeal. Under Federal Rule of Appellate Procedure 3(c), a notice of appeal must specify the appealing parties, the order or judgment from which they appeal, and name the court to which they appeal. The notice of appeal in Ditech failed all of those requirements:
The putative notice listed the wrong plaintiffs, the wrong defendants, the wrong case number, the wrong judgment, and the wrong judgment date.
Although courts will sometimes excuse deficiencies in a notice of appeal, the failure to name an appealing party “constitutes a failure of that party to appeal.” So the failures in Ditech Financial were inexcusable. And by the time the appellant corrected these deficiencies the next day, the time for appealing had expired.
Ditech Financial LLC v. Talasera and Vincanto Homeowners’ Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), available at the Ninth Circuit and Westlaw.
The Eleventh Circuit on the Appealable Aspects of Orders Concerning Payments to or From the Court’s Criminal Justice Act Registry
In United States v. Pacheco-Romero, the Eleventh Circuit dismissed a disqualified law firm’s challenge to an order directing the clerk to pay fees to appointed counsel.
The dispute in Pacheco-Romero stemmed from several defendants’ retention of the same law firm to defend them from pending drug and conspiracy charges. Shortly after the case began, the district court disqualified the firm and its attorneys due to an actual or potential conflict of interest.
By that time, the firm had already collected $21,000 in fees. Concerned that the firm had not yet earned that amount, the district court ordered the firm to deposit $15,000 in the court’s registry; after the district court determined what the firm had actually earned, any remainder would be refunded to the defendants or set aside for counsel appointed under the Criminal Justice Act. The district court later determined that the firm had earned all but $7,000 of the fees, returned the difference to the firm (with interest), and deposited the $7,000 in the Criminal Justice Act fund to be used for paying the defendants’ appointed counsel. The firm then appealed.
The Eleventh Circuit determined that it had jurisdiction to review most of the firm’s arguments on appeal. The jurisdictional issue turned on the difference between a district court’s “judicial” and “administrative” decisions. Although the courts of appeals can review judicial decisions, they normally lack jurisdiction to review administrative ones. And many orders under the Criminal Justice Act—such as “directing a person to pay money into the court’s registry or directing a court clerk to pay money from the registry to cover the cost of appointed counsel”—are administrative. But the courts of appeals can review whether the district court complied with the Act’s procedural requirements. Any deviation from those requirements is a judicial decision over which the courts have appellate jurisdiction.
Most of the firm’s arguments on appeal challenged the district court’s procedural decisions. But one didn’t: the firm’s argument “that the district court erred in finding that a portion of the funds were available to the defendants.” That decision was solely administrative. So it was outside of the Eleventh Circuit’s appellate jurisdiction.
United States v. Pacheco-Romero, 2021 WL 1653026 (11th Cir. Apr. 28, 2021), available at the Eleventh Circuit and Westlaw.
A New Cert Petition on the Jurisdictionality of Immigration’s Exhaustion Requirement
A new cert petition asks if immigration’s exhaustion requirement is jurisdictional.
An immigration petitioner normally must exhaust all arguments before the Board of Immigration Appeals before making those arguments in the courts of appeals. Most appellate courts deem this exhaustion requirement jurisdictional. That means the courts of appeals cannot excuse or create equitable exceptions to the exhaustion requirement. The government cannot forfeit or waive the failure-to-exhaust defense. And the court of appeals must raise the exhaustion issue on its own initiative.
But not everyone agrees about the jurisdictionality of exhaustion. The Seventh Circuit has held that exhaustion as non-jurisdictional. The Second Circuit agrees. In a recent concurring opinion, Judge Murphy of the Sixth Circuit questioned the jurisdictional conclusion, as he saw no indication in the text of the relevant statute (8 U.S.C. § 1252(d)(1)) that Congress wanted immigration’s exhaustion requirement to be jurisdictional. And a recent Tenth Circuit decision enforced that circuit’s law on the matter “with some reluctance,” doubting the Tenth Circuit’s conclusion that exhaustion is jurisdictional.
The case is Omwega v. Garland. The response is due May 6, 2021.
Petition for a Writ of Certiorari, Omwega v. Garland, No. 20-1395 (Apr. 2, 2021), available at Westlaw.
A New Cert Petition on FISA Access and FISA-Court Jurisdiction
A new cert petition asks (among other questions) if the Foreign Intelligence Surveillance Court of Review has jurisdiction to review the Foreign Intelligence Surveillance Court’s denial of access to its unredacted opinions.
The underlying dispute concerns the petitioner’s claim of a qualified First Amendment right to access the Surveillance Court’s significant opinions. In addition to asking whether such a right exists, the petition raises jurisdictional issues concerning both the Surveillance Court and the Court of Review. Last summer, the Court of Review held that it lacked jurisdiction to review the Surveillance Court’s denial of access to its opinions. I wrote about that decision in a previous weekly roundup; see that post for a detailed discussion of the appellate-jurisdiction issues.
The case is American Civil Liberties Untion v. United States. The response is due June 28, 2021.
Petition for a Writ of Certiorari, American Civil Liberties Untion v. United States, No. 20-1499 (Apr. 19, 2021), available at the Supreme Court and Westlaw.
Cert Denied on Post-Hall Appeals From Pre-Hall Judgments
Finally, the Supreme Court denied cert in Haynes v. World Wrestling Entertainment, Inc.. The case asked when pre-Hall judgments in consolidated actions became final. You can read more about the petition here, and I wrote about the Second Circuit’s decision in the case here. As far as I know, Haynes has been the only federal case to present this issue since Hall was decided. So the Supreme Court might never need to decide what to do with pre-Hall judgments.