Appeals involving dismissals without prejudice, New Jersey’s Civil Rights Act, various aspects of qualified immunity, and determinations of who controlls a corporation for purposes of litigation.
August 24, 2021
Last week, the Seventh Circuit reviewed a dismissal without prejudice, as the plaintiff could not do anything to correct the defects that led to the without-prejudice dismissal. Judge Easterbrook concurred to explain that once a district court is finished with a case, that court has issued a final decision.
In three decisions, courts of appeals addressed various aspects of qualified immunity. The Third Circuit held that defendants can immediately appeal from denials of qualified immunity under New Jersey’s Civil Rights Act. Immunity under the Act is an immunity from litigation, making an immediate appeal necessary. The Sixth Circuit dismissed a qualified-immunity appeal when the district court granted summary judgment for the plaintiff on the claim in question. That grant of summary judgment ended litigation on that particular claim, so there was no need for immediate appellate review. After all, a reversal would subject the defendants to additional litigation, not protect them from it. And the Seventh Circuit split on the interpretation of a video in a qualified-immunity appeal. The majority thought that the video was subject to interpretation, meaning that genuine factual issues precluded granting qualified immunity. Chief Judge Sykes dissented to contend that the video unambiguously depicted the events in question, so the court of appeals could reverse the denial of immunity.
Finally, the Eleventh Circuit immediately reviewed a determination of who controlled a party to litigation via the collateral-order doctrine. In doing so, the court distinguished the case from the normal interlocutory appeal involving disqualification of counsel.
- The Seventh Circuit on Appeals After Dismissals Without Prejudice
- The Third Circuit on Qualified-Immunity Appeals and the New Jersey Civil Rights Act
- The Sixth Circuit Dismissed a Qualified-Immunity Appeal From the Grant of a Plaintiff’s Summary-Judgment Motion
- The Seventh Circuit Split on the Interpretation of a Video in a Qualified-Immunity Appeal
- The Eleventh Circuit Reviewed a Determination of Party Control Via the Collateral-Order Doctrine
The Seventh Circuit on Appeals After Dismissals Without Prejudice
In Carter v. Buesgen, the Seventh Circuit determined that it had jurisdiction over an appeal despite the district court dismissing the plaintiff’s case without prejudice. Judge Easterbrook concurred to explain that once a district court is finished with a case, that court has issued a final, appealable decision.
Carter involved a habeas petitioner’s long-standing effort to directly appeal from his state conviction. The petitioner was convicted in 2017. But the Wisconsin courts have still not addressed the petitioner’s challenge to his sentence. The petitioner accordingly sought relief in federal court. The district court dismissed the case without prejudice, concluding that the petitioner had not exhausted his state remedies. The district court thought that the petitioner should try at least one more time with the state courts. The petitioner appealed that dismissal to the Seventh Circuit.
The Seventh Circuit ultimately concluded that the inordinate delay excused any failure to exhaust and that the petitioner was entitled to relief. Before doing so, the court of appeals confronted its jurisdiction. Appellate courts often say that dismissals without prejudice are not final, appealable decisions. These dismissals often allow parties to fix any defect in their case—e.g., an inadequate pleading, a failure to exhaust state remedies—and then resume litigation. But the Seventh Circuit treats without-prejudice dismissals as final and appealable if the defect cannot be fixed. So, for example, if there are no allegations to add to an inadequate complaint, or if the time to exhaust state remedies has expired, the without-prejudice dismissal is “functionally final.”
That was the case in Carter. Any attempt at exhaustion would be futile, as the Wisconsin courts had already failed to provide the petitioner with a decision on the challenge to his sentence. Any further efforts to exhaust would be futile. So the dismissal was functionally final.
Judge Easterbrook concurred to explain that once a district court is finished with a case, that court has issued a final, appealable decision. The without-prejudice designation is not “a talisman meaning ‘no jurisdiction.’” A dismissal without prejudice can mean that there’s more to do in the district court. Or it can mean that a litigant should go to some other forum. What matters for appellate jurisdiction is whether the district court is finished. “Appellate jurisdiction is supposed to be determined using simple, bright-line rules.” And “a decision closing the case always is final.” Judge Easterbrook accordingly suggested the following rule:
[W]hen “without prejudice” means “I have not resolved the merits but this case is over nonetheless,” then the decision is final; when it means “the problem can be fixed so that litigation may continue in this court,” then the decision is not final.
In other words, “[f]inality depends on what the district judge did, not on what that other court may do tomorrow.”
Carter v. Buesgen, 2021 WL 3660879 (7th Cir. Aug. 18, 2021), available at the Seventh Circuit and Westlaw.
The Third Circuit on Qualified-Immunity Appeals and the New Jersey Civil Rights Act
In Lozano v. New Jersey, the Third Circuit held that denials of qualified immunity under the New Jersey Civil Rights Act are immediately appealable via the collateral-order doctrine.
Lozano involved false-arrest, false-imprisonment, and malicious-prosecution claims brought under three statutes: 42 U.S.C. § 1983, the new Jersey Civil Rights Act, and the New Jersey Tort Claims Act. The defendants sought summary judgment on the plaintiff’s claims and invoked qualified immunity for the § 1983 and Civil Rights Act claims. The district court refused to dismiss most of the plaintiff’s claims. One of the defendants then appealed, arguing that he was not sufficiently involved in the plaintiff’s arrest or charging.
Before addressing the appeal’s merits, the Third Circuit had to address its jurisdiction. The district court’s denial of qualified immunity on the § 1983 was appealable under Mitchell v. Forsyth. Qualified immunity shields defendants from litigation, not just liability, and is thus immediately appealable. The refusal to dismiss the New Jersey Tort Claims Act claims was not appealable under the Third Circuit’s decision in Brown v. Grabowski. The Tort Claims Act provides only a defense against liability, not litigation.
The Third Circuit had not previously addressed appeals from the denial of qualified immunity under the New Jersey Civil Rights Act. The court concluded that immunity under that Act was similar to qualified immunity under § 1983. Indeed, New Jersey courts did not differentiate between claims under the two statutes. So qualified immunity under the Civil Rights Act provided a protection from litigation. And the denial of that immunity was immediately appealable via the collateral-order doctrine.
Lozano v. New Jersey, 2021 WL 3612109 (3d Cir. Aug. 16, 2021), available at the Third Circuit and Westlaw.
The Sixth Circuit Dismissed a Qualified-Immunity Appeal From the Grant of a Plaintiff’s Summary-Judgment Motion
In Williams v. Maurer, the Sixth Circuit held that it lacked jurisdiction to review the grant of a plaintiff’s motion for summary judgment that implicated qualified immunity.
Simplifying a bit, Williams involved several claims stemming from the warrantless entry into one plaintiff’s home and the arrest of another plaintiff. The parties eventually filed cross motions for summary judgment. One plaintiff sought summary judgment on his false-arrest claim. The defendants sought qualified immunity on the plaintiffs’ unlawful-entry and excessive-force claims. The district court granted the plaintiff’s motion and largely denied the defendants’. The defendants then appealed.
Appellate jurisdiction over the rejection of qualified immunity on the unlawful-entry and excessive-force claims was straightforward. The district court had rejected the defendants’ request for qualified immunity, which is an immediately appealable collateral order.
The district court’s grant of summary judgment to the plaintiff on the false-arrest claim was different. For one thing, the defendants did seek qualified immunity on this claim. Nor did they raise qualified immunity in response to the plaintiff’s summary-judgment motion. So the defendants could not take a qualified-immunity appeal from this part of the district court’s decision.
For another thing, the grant of a plaintiff’s summary-judgment motion over a qualified-immunity defense is not immediately appealable. Defendants may immediately appeal from the denial of immunity to avoid the burdens of litigation. But when a district court grants a plaintiff summary judgment on a claim, litigation of that claim is over—there is nothing left for the defendant to avoid. Reviewing and reversing this grant of summary judgment would result in subjecting the defendant to further litigation. Defendants instead must wait for a final-judgment appeal to seek review of the grant of summary judgment.
The Sixth Circuit also refused to extend pendent appellate jurisdiction to the grant of summary judgment. The appealable issues—immunity on the unlawful-entry and excessive-force—did not necessarily resolve the false-arrest issue.
Williams v. Maurer, 2021 WL 3629921 (6th Cir. Aug. 17, 2021), available at the Sixth Circuit and Westlaw.
The Seventh Circuit Split on the Interpretation of a Video in a Qualified-Immunity Appeal
In Smith v. Finkley, a split Seventh Circuit dismissed a qualified-immunity appeal due to genuine factual disputes. The majority and dissent disagreed over whether videos of events were subject to multiple interpretations—and thus disagreed over the court’s appellate jurisdiction.
Simplifying a bit, Smith arose out of a non-fatal shooting after a standoff between the plaintiff and police on top of a parking garage. The plaintiff brought excessive-force claims against two of the officers. The officers eventually sought summary judgment on qualified-immunity grounds, arguing that the plaintiff had lunged for a space behind an air-conditioning unity that, the officers feared, might contain a weapon. The plaintiff responded that he was merely surrendering, leaning towards the ground in compliance with the officers’ instructions to “get down.” According to the district court, a reasonable jury could conclude that the officers were unreasonable in perceiving the plaintiff as lunging toward the ground or otherwise posing a threat that was sufficient to justify the shooting. The district court accordingly denied qualified immunity. The officers then appealed.
The majority dismissed the appeal for a lack of jurisdiction. The district court had determined that genuine fact issues existed as to how the plaintiff moved toward the ground before being shot and whether the plaintiff posed an immediate threat of harm to the officers. Under Johnson v. Jones, the Seventh Circuit had to take those genuine fact disputes as given unless the defendants could show that something in the summary-judgment record blatantly contradicted the district court’s determination. That is, absent a blatant contradiction, the Seventh Circuit could not review the genuineness of the fact disputes. It could address only their materiality.
According to the majority, videos of the shooting did not blatantly contradict the district court’s determination that genuine fact disputes existed:
From the objective perspective of a reasonable officer on the scene, a factual dispute exists as to what [the plaintiff] appeared to be doing directly before and as shots were fired. The officers’ videos do not blatantly contradict or corroborate the version of events for one side or the other, leaving this factual dispute unresolved.
In other words, the videos were open to interpretation. And the officers did not argue they were entitled to immunity under the most-plaintiff-favorable version of events: that they used potentially deadly force against a surrendering suspect who posed no threat of immediate harm. The officers instead disputed the factual basis for the district court’s immunity denial. So the Seventh Circuit lacked jurisdiction to address their arguments.
Chief Judge Sykes dissented. As she saw things, “[t]he historical facts about what occurred before and during the shooting are preserved on video and are not disputed.” The only question was whether, given the events depicted in the video, “it was objectively reasonable for the officers to interpret [the plaintiff]’s hand gesture and downward movement as a possible attempt to retrieve a gun from behind the air conditioner where he had been hiding.” With nothing to interpret, there were no genuine factual disputes. The court could accordingly address immunity as a matter of law.
Two notes about Chief Judge Sykes’ dissent. First, she viewed qualified-immunity appeals as “fit[ting] comfortably within the collateral-order doctrine.” I disagree. The Supreme Court shoehored qualified-immunity appeals into that doctrine, and the fit isn’t pretty. Second, Chief Judge Sykes suggests that qualified immunity is forever lost absent an immediate appeal. That’s not quite right. To be sure, defendants lose qualified immunity’s protections from further litigation. But qualified immunity is also a defense to liability, and the officers can still argue at trial that their actions did not violate clearly established law.
Smith v. Finkley, 2021 WL 3660880 (7th Cir. Aug. 18, 2021), available at the Seventh Circuit and Westlaw.
The Eleventh Circuit Reviewed a Determination of Party Control Via the Collateral-Order Doctrine
In LaTele Television, C.A. v. Telemundo Communications Group, LLC, the Eleventh Circuit reviewed an interlocutory order that determined who controlled one of the parties.
Simplifying a bit, LaTele Television involved a Venezuelan television network’s copyright-infringement suit against an American network. Midway through litigation, the president of the Venezuelan network (who was also its majority shareholder, director, CEO, and head of the board of directors) was involved in a criminal case that ultimately resulted in his losing control of the company. The Venezuelan courts appointed an oversight board to replace the ousted president. The district court hearing the copyright-infringement suit subsequently ruled that the oversight board—not the former president—controlled the Venezuelan network. The former president then appealed.
The Eleventh Circuit held that it had jurisdiction over the district court’s decision via the collateral-order doctrine. Under that doctrine, an otherwise-interlocutory decision is final when the decision (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The order in LaTele Television conclusively determined who controlled the Venezuelan network, at least for purposes of the copyright-infringement suit. The order was completely separate from the merits of that suit. And the order effectively put the president out of court, such that he could not obtain review of the decision in a final-judgment appeal. The Eleventh Circuit also explained that the order determining control of the company was not merely an order over attorney disqualification, which are not appealable via the collateral-order doctrine.
LaTele Television, C.A. v. Telemundo Communications Group, LLC, 2021 WL 3699461 (11th Cir. Aug. 20, 2021), available at the Eleventh Circuit and Westlaw.