Dismissals without prejudice, consent decrees, an initial hearing en banc, and more.
August 19, 2019
It was another eventful week in federal appellate jurisdiction, including an odd decision on appeals from dismissals without prejudice, a jurisdictional decision in the appeal involving conditions for children at Border Patrol stations, and the reply brief for the cert petition on anti-SLAPP appeals.
The Fifth Circuit’s absurd dismissals-without-prejudice decision
Let’s start with Williams v. Taylor Seidenbach, Inc.. In Williams, the Fifth Circuit held that voluntarily dismissing claims against some defendants without prejudice foreclosed the plaintiffs from appealing claims that were resolved on the merits. This was after the plaintiffs returned to the district court to try and change the voluntary dismissal to with prejudice. It’s a bad application of the general dismissals-without-prejudice rule of appellate jurisdiction. And it illustrates the problems that can arise when you place finality at the center of all sorts of appellate rules.
See my post on Williams for more. Hopefully this case will be reheard en banc.
Williams v. Taylor Seidenbach, Inc., 2019 WL 3822147 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.
The Ninth Circuit dismissed the appeal on conditions for children at Border Patrol stations
In Flores v. Barr, the Ninth Circuit dismissed the government’s appeal challenging the order requiring it to provide safe and sanitary conditions for children held in Border Patrol stations. The case dates back to a 1997 consent decree governing conditions in those stations. The current litigation seeks to enforce the terms of that consent decree.
The Ninth Circuit’s decision was at bottom a jurisdictional one. The issue was whether the district court’s decision modified the consent decree—which would be appealable under 28 U.S.C. § 1292(a) as an order modifying an injunction—or instead interpreted and enforced it—which would not be appealable. The government said the decision was a modification because it required (among other things) that the government provide specific hygiene items. The Ninth Circuit disagreed; the district court’s order merely interpreted the consent decree’s requirement that minors be held in “safe and sanitary” conditions. And with no modification, there was no jurisdiction.
Flores v. Barr, 2019 WL 3820265 (9th Cir. 2019), available at the Ninth Circuit and Westlaw.
The Fifth Circuit is initially hearing a case en banc
Earlier this summer, the Fifth Circuit granted initial hearing en banc—i.e., without an initial panel hearing—to decide whether pro se litigants can immediately appeal denials of appointed counsel in civil rights suits. (The order granting the initial hearing en banc came out in June, but I didn’t notice it until it was mentioned in the footnote of a Fifth Circuit opinion from this past week.) The case is Williams v. Catoe, No. 18-40825, and it will be heard in September.
Williams—a Texas inmate proceeding pro se—sued several state employees for deliberate indifference to medical needs in violation of the eighth amendment. The district court rejected Williams’s request to appoint counsel. Under the Fifth Circuit’s 1985 decision in Robbins v. Maggio, denials of appointed counsel are immediately appealable under the collateral-order doctrine. So Williams appealed the district court’s decision. But the state of Texas moved for initial hearing en banc, and Louisiana and Mississippi filed an amicus brief in support of the motion. They asked the Fifth Circuit to re-examine Robbins. The court agreed and will sit for a rare initial en banc hearing. The court also appointed counsel for Williams (presumably only for purpose of the en banc proceedings).
The Federal Circuit heard a certified appeal from the Court of Federal Claims
In Laturner v. United States, the Federal Circuit held that federal law preempted state laws purporting to escheat unclaimed savings bonds to the state. The case is pretty interesting. Kansas and Arkansas had passed escheat laws providing that Treasury-issued savings bonds that were not claimed within five years of their maturity were deemed abandoned and escheated to the state. The states sought redeem a large (but uncertain) number of these bonds and, when Treasury refused, filed suit in the Court of Federal Claims. The Claims Court sided with the states and held that Treasury must pay the proceeds on the relevant bonds once they are identified.
The jurisdictional issue is relatively minor: the Claims Court then certified its decision for an immediate appeal under 28 U.S.C. § 1292(d)(2). That little-known provision is the Claims Court’s equivalent of § 1292(b): it allows that court to certify an issue for an immediate appeal. The Claims Court thought that certification was appropriate because identifying the escheated bonds would take a lot of time and money, and several similar claims by other states were pending. The Federal Circuit accepted the appeal and, as mentioned above, held that federal law preempted the state laws. The court accordingly reversed.
Laturner v. United States, 2019 WL 3788255 (Fed. Cir. 2019), available at the Federal Circuit and Westlaw.
The Seventh Circuit rejected a fact-only qualified-immunity appeal
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. The opinion has a good discussion of the limits on qualified-immunity appeals. But it also illustrates what a waste of time these appeals can be when defendants flout those limits.
See my post on Koh for more.
Koh v. Ustich, 2019 WL 3789246 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.
The Tenth Circuit held it lacked jurisdiction in an absolute-immunity appeal to review whether a complaint stated a claim
In Bledsoe v. Vanderbilt, the Tenth Circuit affirmed the denial of absolute immunity to a former prosecutor who allegedly fabricated evidence. The court then dismissed the remainder of his appeal, part of which argued that the plaintiff’s complaint had not sufficiently pleaded a conspiracy to fabricate evidence. The Tenth Circuit held that it lacked jurisdiction in an interlocutory absolute-immunity appeal to address that argument. The court analogized to interlocutory qualified-immunity appeals and said that its jurisdiction did not include the adequacy of the pleadings.
This struck me as a bit odd. Ashcroft v. Iqbal held that the adequacy of a complaint was fair game in a qualified-immunity appeal. I figured that rule would apply to absolute-immunity appeals as well. But the Tenth Circuit seems to think otherwise.
Bledsoe v. Vanderbilt, 2019 WL 3852417 (10th Cir. 2019), available at the Tenth Circuit and Westlaw.
Several decisions on appeals from dismissals without prejudice
Although the Fifth Circuit has problems with appeals from dismissals without prejudice, other courts seem to handle them well. Several decisions this week involved district courts dismissing claims without prejudice (as opposed to the litigants voluntarily dismissing claims themselves). And in each, the court of appeals held that the dismissal without prejudice was final and appealable.
In two cases—Harper v. County of Delaware and Boxill v. O’Grady—plaintiffs appealed instead of amending their complaints. The courts held that this conduct signaled the plaintiffs’ intention to stand on their original complaints, which rendered the dismissal final.
In two others—Kennedy v. Pennsylvania and Fang v. ICE—the district court had dismissed on jurisdictional grounds. Because the plaintiffs could do nothing to cure the jurisdictional defect, the dismissal without prejudice was deemed final. (The court in Kennedy also noted that the plaintiff had appealed rather than amended, thus standing on his complaint.)
And in Effex Capital, LLC v. National Futures Association, the Seventh Circuit concluded that district court was finished with a case, thereby rendering the decision final. The district court had held that the plaintiff needed to exhaust its administrative remedies and then seek review in “the appropriate federal court”—which, under the relevant statutory scheme, was the court of appeals and not the district court. The district court also entered a Rule 58 judgment and closed the case. These actions indicated to the Seventh Circuit that the plaintiff could not refile in the district court, even after it exhausted administrative remedies. The court accordingly deemed the decision a final one.
Harper v. County of Delaware, 2019 WL 3781687 (3d Cir. 2019), available at the Third Circuit and Westlaw.
Kennedy v. Pennsylvania, 2019 WL 3814438 (3d Cir. 2019), available at the Third Circuit and Westlaw.
Fang v. ICE, 2019 WL 3820463 (3d Cir. 2019), available at the Third Circuit and Westlaw.
Boxill v. O’Grady, 2019 WL 3849559 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
Effex Capital, LLC v. National Futures Association, 2019 WL 3798213 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.
The week in qualified-immunity appeals
Besides Koh, there were two qualified-immunity appeals worth mentioning.
In Graham v. Klipsch, the Eighth Circuit rejected a defendant’s attempt to invoke the blatant-contradiction exception to the normal jurisdictional limits in qualified-immunity appeals.
And in Stefani v. City of Grovetown, the Eleventh Circuit applied the municipal-appeal rule to address a city’s interlocutory appeal alongside individual defendants’ qualified-immunity appeals.
Graham v. Klipsch, 2019 WL 3783128 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
Stefani v. City of Grovetown, 2019 WL 3854255 (11th Cir. 2019), available at the Eleventh Circuit and Westlaw.
Reply brief filed in cert petition on anti-SLAPP appeals
Last but certainly not least, I’ve been following the cert-stage briefing in Andreoli v. Youngevity International Corp. The case asks whether denials of anti-SLAPP motions are appealable under the collateral-order doctrine. And the reply brief was filed this week.
Interestingly, the reply brief asks the Supreme Court to address the Erie issue—whether state anti-SLAPP laws apply in federal court.
Reply Brief for Petitions, Andreoli v. Youngevity International Corp., No. 19-20, available at the Supreme Court and Westlaw.