The Week in Federal Appellate Jurisdiction: August 18–24, 2019

There were a few interesting decisions last week on appeals from the denial of governmental privileges, calculating the time for the government to appeal in a criminal case, appeals from the denial state-action immunity, and an attempt to use some of the recent research on qualified immunity to change the law governing qualified-immunity appeals.

Let’s start with a new cert petition that involves review of decisions by the Railroad Retirement Board.

New cert petition on circuit split over jurisdiction to review the Railroad Retirement Board’s refusal to reopen benefits determinations

The Railroad Retirement Board administers benefits programs for railroad workers. And under 45 U.S.C. § 355(f) and 45 U.S.C. § 231g, the courts of appeals can review “any final decision” by the Board. But courts appear to have split over whether the Board’s denial of a motion to reopen a prior benefits determination is a “final decision” that they can review. The Second, Eighth, and D.C. Circuits have held that denials of reopening are “final decisions” and thus reviewable. The Third, Fourth, Fifth, Seventh, and Tenth Circuits say that they aren’t.

A new cert petition—Salinas v. U.S. Railroad Retirement Board—asks the Supreme Court to resolve this split. (The petition was actually filed a few weeks ago. But I use Westlaw to track cert petitions, and it just showed up in Westlaw’s database this past week.) The response is due September 16, 2019. You can follow the case at the Supreme Court docket.

Petition for a Writ of Certiorari, Salinas v. U.S. Railroad Retirement Board, No. 19-199, avilable at the Supreme Court and Westlaw.

The Fifth Circuit on governmental-privilege appeals

In Stallworth v. Bryant, the Fifth Circuit allowed Mississippi legislators to appeal a discovery order that rejected their claim of legislative privilege. And it appears that those legislators were never held in contempt. This is odd; litigants normally must first be held in contempt for disobeying a discovery order before they can appeal it. But a little digging showed that appellate jurisdiction came from a line of (relatively old) Fifth Circuit decisions that allow immediate appeals from denials of governmental privileges.

You can read more about Stallworth—and why the Fifth Circuit’s rule for governmental-privilege appeals is wrong—at this post.

Stallworth v. Bryant, 2019 WL 3940915 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.

The Seventh Circuit on calculating the time for the government to appeal in a criminal case

In United States v. Lee, the Seventh Circuit held that the government’s 30-day window to file a notice of appeal in a criminal case runs from any notice of appeal filed by the defendant, not necessarily the first one. Under Appellate Rule 4(b)(1)(B), the government must file its notice of appeal within 30 days of the entry of the judgment or order being appealed or the filing of a notice of appeal by any defendant, whichever is later. The defendant in Lee had filed two notices—one after his sentence was announced and another after the district court (on the defendant’s motion) corrected the sentence. After the district court corrected the sentence, the government filed its own notice of appeal. But it wasn’t clear whether the government’s notice was timely. If its 30 days began to run with the defendant’s first notice of appeal, it was late. But if the time began to run with the defendant’s second notice, it was timely.

The Seventh Circuit held that the second notice of appeal mattered for purposes of calculating the time to appeal. Rule 4(b)(1)(B) requires that the government file its notice within 30 days of “a notice of appeal by any defendant,” not the first notice of appeal. This distinguished Rule 4(b)(1)(B) from its civil counterpart, Rule 4(a)(3), under which the time for filing a cross appeal runs from whenever the first notice of appeal is filed. Given Rule 4(b)(1)(B)’s text, the Seventh Circuit concluded that the government need file its notice within 30 days of the last notice of appeal the defendant filed.

United States v. Lee, 2019 WL 3940951 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.

The Seventh Circuit refused to alter its rule on qualified-immunity appeals and injunctive relief

In Campbell v. Kallas, the Seventh Circuit rejected the argument that it should decline jurisdiction over a qualified-immunity appeal because the plaintiff also sought injunctive relief. Invoking the work of Joanna Schwartz and others, the plaintiff in Campbell argued that because (1) the defendants were indemnified and (2) immunity wouldn’t shield the defendants from a trial on the injunctive relief, immunity would not serve its purpose. So, the plaintiff argued, no appeal was warranted.

But the Seventh Circuit had held several decades ago that a pending request for injunctive relief did not affect jurisdiction over a qualified-immunity appeal. There was a circuit split on this issue at the time, and Mitchell v. Forsyth had left it open. But the one outlier has soon changed course.

And the Seventh Circuit thought that its rule was correct. It found support in the Supreme Court’s decision in Behrens v. Pelletier. The plaintiff in Behrens had brought several claims against the defendant, and qualified immunity was a defense to only some of them. The plaintiff argued that an interlocutory appeal from the denial of qualified immunity was not appropriate; the case would still proceed to trial on the other claims. But the Supreme Court disagreed.

Campbell v. Kallas, 2019 WL 3886912 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.

The Eleventh Circuit heard an interlocutory appeal involving state-action immunity

In Diverse Power, Inc. v. City of LaGrange, the Eleventh Circuit held that a city was not entitled to state-action immunity for an allegedly illegal tying arrangement. The City of LaGrange—which owns and operates both water and natural gas utilities—had conditioned the provision of water service to certain housing developments on their installing natural-gas appliances. Diverse Power sued the city, claiming that this conduct violated federal antitrust laws. The city moved to dismiss for state-action immunity, which shields political subdivisions from antitrust liability in certain circumstances. The district court denied the motion, and the city appealed.

Under Eleventh Circuit precedent, the denial of state-action immunity is an immediately appealable collateral order. Diverse Power challenged this rule, arguing that it was wrong and had been undermined. But the Eleventh Circuit rejected that argument. It thought that its rule was sound and, even if it wasn’t, no on-point Supreme Court decision had undermined it.

The real point of interest here (for me, at least) is the potential for this appealability issue to reach the Supreme Court. The Court was poised to decide this issue in Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc. But that case was settled before the Court heard argument. And last I checked the courts of appeals remain split over the appealability of orders denying state-action immunity.

Diverse Power, Inc. v. City of LaGrange, 2019 WL 3928624 (11th Cir. 2019), available at the Eleventh Circuit and Westlaw.