The Bivens question, rebuffed attempts to dismiss a qui tam suit, administrative remands, pendent appellate jurisdiction, qualified immunity, and more.
August 11, 2020
Lots of interesting appellate-jurisdiction decisions last week. The Third Circuit allowed what looked to be a pure interlocutory appeal of the Bivens question. The Ninth Circuit held that the government could not immediately appeal the denial of its motion to dismiss a qui tam suit, at least when the government had not intervened. The Tenth Circuit addressed its jurisdiction—normal and pendent—in an appeal from an administrative remand. Three other courts addressed pendent appellate jurisdiction—two in the context of municipal appeals alongside qualified-immunity appeals and a third in the context of unspecified attorneys’ fees. And the Sixth Circuit held that it could review whether a district court should have assumed more plaintiff-favorable facts in denying qualified immunity. Plus mandamus for a transfer decision and jurisdiction to review magistrate judge decisions.
- The Third Circuit Heard What Might Be a Pure Interlocutory Bivens Appeal
- No Appeals From Refusals to Dismiss Qui Tam Suits
- The Tenth Circuit on Administrative-Remand Appeals and Pendent Appellate Jurisdiction
- Two Decisions on Municipal Piggybacking in Qualified-Immunity Appeals
- The Ninth Circuit Said No Qualified-Immunity Appeals From Denials of Reconsideration
- The Sixth Circuit on Jurisdiction to Determine a More Plaintiff-Favorable Version of Facts in a Qualified-Immunity Appeal
- The Seventh Circuit Used Mandamus to Reverse a Transfer Order
- Quick Notes
The Third Circuit Heard What Might Be a Pure Interlocutory Bivens Appeal
In Mack v. Yost, the Third Circuit held that no Bivens remedy existed for First Amendment retaliation that occurred in a federal prison. It did so in the course of deciding what looked like an interlocutory qualified-immunity appeal. But the Third Circuit had already held—in a prior appeal in the same case—that the defendants were not entitled to qualified immunity. Nothing seems to have changed between the prior appeal and the most recent one that would affect the immunity analysis. So it appears that there were no new grounds for seeking immunity. Yet the denial of immunity provided the appellate-jurisdiction hook for the Bivens issue. With no real qualified-immunity issue to address on appeal, the Third Circuit appears to have allowed a pure interlocutory Bivens appeal.
Read more at my post A Pure Interlocutory Bivens Appeal?
Mack v. Yost, 2020 WL 4459994 (3d Cir. Aug. 4, 2020), available at the Third Circuit and Westlaw.
No Appeals From Refusals to Dismiss Qui Tam Suits
In United States v. Academy Mortgage Corp., the Ninth Circuit held that the government may not immediately appeal a district court decision refusing to dismiss a qui tam suit under the False Claims Act.
The plaintiff—or “relator,” in qui tam terms—in Academy Mortgage alleged that the defendant mortgage lender had falsely certified loans for Federal Housing Administration insurance. Some of those loans defaulted, requiring the government to pay the lender.
The United States has a right to intervene in False Claims Act suits. But it declined to do so in Academy Mortgage. Normally that would leave the relator to pursue the action herself. And if the relator wins, the government gets a large share of the damages.
But the United States also moved to dismiss the action under 31 U.S.C. § 3730(c)(2)(A). That provision lets the government move to dismiss a qui tam suit “notwithstanding the objections of the person initiating the action” so long as that person has notice and an opportunity to be heard. The United States argued that the action would unduly burden the government through discovery requests that would “tax many of the same resources being used in other litigation and investigations.” In other words, the United States thought that the expense of the relator’s pursuing the action would outweigh any potential gains to the government.
The district court denied the government’s motion. It determined that the government had not adequately investigated the claims in Academy Mortgage and thus had not meaningfully assessed the potential benefits to the suit.
The government then appealed. The underlying action was far from over. So the government relied on the collateral-order doctrine for appellate jurisdiction.
The Ninth Circuit held that the denial of the government’s motion to dismiss a False Claims Act action is not immediately appealable under the collateral-order doctrine. That doctrine allows immediate appeals from certain kinds of district court decisions that (1) conclusively resolve a matter, (2) involve important issues that are separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The Ninth Circuit focused on the second requirement, particularly the requirement that the decision in question be “important.” Importance has played an elusive but important role in the collateral-order doctrine. Even when the other requirements appear to be met, courts have used the importance requirement to disallow collateral-order appeals.
As the Ninth Circuit saw things, an erroneous refusal to dismiss a qui tam suit was not sufficiently important—at least when the government has not intervened—to warrant a collateral-order appeal. Granted, the error can lead to what will later be deemed unnecessary efforts and expenses. But those sorts of costs are a normal part of litigation. And they don’t warrant an immediate appeal. So even if the government’s option to dismiss a qui tam suit existed to avoid financially burdensome suits, the government’s “interest in cost avoidance is simply not a ‘value of a high order’ on par with those the collateral order doctrine has been held to protect.” Indeed, the court noted that those who object to actually burdensome discovery cannot immediately appeal via the collateral-order doctrine. It would be “incongruous” if the government’s interest in avoiding “the possibility of future onerous discovery requests [was] important enough to merit an immediate appeal.”
The government had several other arguments, all of which the Ninth Circuit rejected. So the government could not appeal from the denial of its motion to dismiss. But the court left open the question of whether the result might be different if the government had intervened and then had its motion to dismiss denied.
United States v. Academy Mortgage Corp., 2020 WL 4462130 (9th Cir. Aug. 4, 2020), available at the Ninth Circuit and Westlaw.
The Tenth Circuit on Administrative-Remand Appeals and Pendent Appellate Jurisdiction
In Zen Magnets, LLC v. Consumer Product Safety Commission, the Tenth Circuit held that it had jurisdiction to review a district court decision that remanded a suit to an agency for further proceedings.
Simplifying a bit, Zen Magnets involved the regulation of small rare-earth magnets. Children had swallowed these magnets, and the Consumer Product Safety Commission explored ways to mitigate this risk. In addition to issuing rules regulating the size and strength of magnets, the Commission brought an action against a manufacturer of these magnets, alleging that the magnets posed a “substantial product hazard.” The Commission eventually determined that “no warnings could mitigate the risk of injury” from the manufacturer’s magnets. The manufacturer then sought review in the district court, arguing that some of the Commission members were biased. That court (1) held that the Commission’s decision was not arbitrary or capricious, (2) held that one (but not all) of the Commissioners was biased and thus violated due process by participating in the adjudication, and (3) invalidated the Commission’s decision and remanded the dispute to the agency.
On appeal to the Tenth Circuit, the court held that it had jurisdiction over most of the suit. Decisions remanding a dispute to an agency normally aren’t final; more remains to be done before the agency. But courts allow appeals from administrative remands when those remands might preclude any future appellate review of the district court’s decision. After all, agencies normally cannot appeal from their own decisions. So if, on remand, the agency follows the district court’s instructions and reaches a decision favoring the private party, the agency will lose any opportunity for appellate review of the district court’s decision.
That was the case in Zen Magnets. If the Commission could not appeal immediately, it might lose any opportunity for appellate review of the district court’s decision that one of the Commission’s members was biased:
Dismissal of the appeal would spark new administrative proceedings before a new panel, and the resulting order would supersede the Commission’s existing order. So any challenge to the district court’s ruling on due process would likely become moot, and the Commission would likely lose the chance to appeal.
As for the manufacturer’s cross-appeal, the normal rule for administrative remands applied. Should the manufacturer lose again before the Commission, it could appeal that decision and obtain review of review of all issues in a single appeal. The collateral-order doctrine also did not apply because the manufacturer could eventually appeal from any adverse decision.
But the Tenth Circuit held that pendent appellate jurisdiction existed over the manufacturer’s appeal. The court explained that pendent jurisdiction was proper when appealable and non-appealable issues are inextricably intertwined. And the Tenth Circuit has held that issues are inextricably intertwined when “the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal.” The manufacturer’s due-process claims were sufficiently intertwined with the issues raised in the Commission’s appeal because the issues involved the same legal analysis. So pendent jurisdiction was proper for those issues. But it was not proper for other arguments that had nothing to do with any bias of the Commissioners.
On the merits, the Tenth Circuit held that the district court erred in concluding that one Commissioner’s participation violated due process. It otherwise affirmed the district court’s judgment.
Zen Magnets, LLC v. Consumer Product Safety Commission, 2020 WL 4458995 (10th Cir. Aug. 4, 2020), available at the Tenth Circuit and Westlaw.
Two Decisions on Municipal Piggybacking in Qualified-Immunity Appeals
Speaking of pendent appellate jurisdiction, two courts addressed their jurisdiction to review municipal defendants’ appeals alongside qualified-immunity appeals.
Civil-rights plaintiffs sometimes sue both the individual government officials who violated their rights and the municipal entities that employ those officials. If the district court denies the officials’ request for qualified immunity, the officials can immediately appeal that denial. But the municipality that employs those officials cannot seek immunity. Nor can the municipality normally appeal from the denial of its motions to dismiss or for summary judgment. Yet municipalities sometimes try to tag along with the individual officials’ appeal via pendent appellate jurisdiction.
In Suzuki v. County of Contra Costa, the Ninth Circuit held that pendent jurisdiction existed over a municipal appeal. The plaintiff in Suzuki had sued a social worker and the county that employed her, arguing that the social worker fabricated evidence that led to the plaintiff’s losing joint custody of his children. The district court denied the social worker’s request for qualified immunity and the county’s motion for summary judgment on municipal liability. Both defendants appealed.
Appellate jurisdiction over the social worker’s appeal was straightforward; it was a normal interlocutory qualified-immunity appeal. In that appeal, the Ninth Circuit concluded that the plaintiff failed to plead a constitutional violation by the social worker. As for the county, the court of appeals noted that its resolution of the social worker’s appeal necessarily resolved the claim against the county. With no constitutional violation by the social worker, there was nothing for the county to be liable for. And courts often hold that if an appealable issue necessarily resolves a pendent one, appellate jurisdiction exists over both. So the Ninth Circuit exercised pendent appellate jurisdiction and reversed the denial of summary judgment to the county, too.
Contrast Suzuki with the Eighth Circuit’s decision in Ivey v. Audrain County. There, the court dismissed a county’s attempt to appeal alongside its employees. The plaintiff in Ivey had died while in jail, and his father sued the jail employees and the county that employed them. The district court denied qualified immunity to the employees and denied the county’s motion for summary judgment. All defendants appealed.
In the individual defendants’ appeal, the Eighth Circuit held that the law was not clearly established, entitling the those defendants to qualified immunity. But that decision did not resolve the claim against the county. The officers could still have violated the constitution, and the county might be liable for that violation. Because the individual defendants’ appeal did not necessarily resolve the county’s, the Eighth Circuit lacked pendent appellate jurisdiction over the county’s appeal.
For more on municipal piggybacking, see my post Estate of Ceballos & Pendent Appellate Jurisdiction Over Monell Claims.
Suzuki v. County of Contra Costa, 2020 WL 4435099 (9th Cir. Aug. 3, 2020), available at the Ninth Circuit and Westlaw.
Ivey v. Audrain County, 2020 WL 4458776 (8th Cir. Aug. 4, 2020), available at the Eighth Circuit and Westlaw.
The Ninth Circuit Said No Qualified-Immunity Appeals From Denials of Reconsideration
Speaking of qualified-immunity appeals, in Hanson v. Shubert, the Ninth Circuit held that defendants could not appeal from an order denying reconsideration of the denial of qualified immunity.
Details on Hanson are sparse. The district court denied the defendants’ requests for qualified immunity due to the existence of genuine fact issues. The defendants did not appeal that decision. A year later, they sought reconsideration of the denial of immunity. The district court denied that motion, too, and then the defendants appealed.
The Ninth Circuit first concluded that the appeal was untimely as to the original denial of qualified immunity. The defendants had 30 days to appeal that denial, and they waited far longer than that. The motion for reconsideration did not affect this 30-day window, as only a timely motion for reconsideration will toll the deadline to appeal.
The Ninth Circuit also held that it lacked jurisdiction to review the denial of reconsideration. The appeal from that denial was timely. But the court concluded that the denial of reconsideration—unlike the underlying denial of qualified immunity—was not immediately appealable. Even if the denial of qualified immunity raises an important issue meriting an immediate appeal, the reconsideration of that decision does not:
Denial of reconsideration does not resolve an important issue, but merely resolves whether to revisit an important issue.
The defendants accordingly could not use their motion for reconsideration to revive their right to appeal.
In a footnote, the Ninth Circuit said that a case might exist in which “intervening law between a denial of qualified immunity and a denial of reconsideration renders the collateral order doctrine applicable to the latter.” Concurring in all but that footnote, Judge Bumatay would have adopted a bright-line rule against appeals from these denials of reconsideration.
Hanson v. Shubert, 2020 WL 4462137 (9th Cir. Aug. 4, 2020), available at the Ninth Circuit and Westlaw.
The Sixth Circuit on Jurisdiction to Determine a More Plaintiff-Favorable Version of Facts in a Qualified-Immunity Appeal
In Ouza v. City of Dearborn Heights, the Sixth Circuit held that it had jurisdiction to hold that a district court did not adopt the most plaintiff-favorable version of the facts in denying qualified immunity.
The plaintiff in Ouza brought excessive-force claims against the police officers who arrested her, alleging that too-tight handcuffs caused marks and carpal tunnel syndrome. The district court denied the officers’ request for qualified immunity. But in doing so, the district court refused to consider evidence that the handcuffing had caused the plaintiff’s carpal tunnel syndrome. The officers appealed. The plaintiff cross-appealed, arguing that the district court had erred in disregarding evidence that the handcuffing caused her carpal tunnel.
The case presents a unique variation on the common arguments over evidence sufficiency in qualified-immunity appeals. Normally it’s defendants that try to argue for a different version of the facts than that which the district court assumed for the purposes of summary judgment. That argument is barred by Johnson v. Jones, which holds that courts hearing a qualified-immunity appeal must take as true the same version of facts that the district court assumed in denying immunity.
But in Ouza, it was the plaintiff who sought a different version of the facts. And the Sixth Circuit held that it had jurisdiction to adopt the more favorable version of facts that the plaintiff requested. The court of appeals explained that the defendants tried “to turn the Johnson rule on its head . . . by arguing that [the court was] bound by the district court’s findings of fact even where the district court improperly construed the facts against the Plaintiff, the non-moving party”:
While this Court does not have jurisdiction to consider determinations of evidence sufficiency under Johnson (i.e., whether or not the plaintiff’s allegations set forth a genuine issue for trial), we do have jurisdiction to review whether the district court properly adopted the plaintiff’s version of the facts in assessing qualified immunity (i.e., whether it applied the correct summary judgment standard). Indeed, the precise scope of our appellate jurisdiction on interlocutory appeal from a denial of qualified immunity is whether the plaintiff’s version of facts demonstrates a violation of clearly established rights.
(Quotation marks omitted.)
The court went on to affirm the denial of qualified immunity to the officers.
Ouza v. City of Dearborn Heights, 2020 WL 4499995 (6th Cir. Aug. 5, 2020), available at the Sixth Circuit and Westlaw.
The Seventh Circuit Used Mandamus to Reverse a Transfer Order
In In re Ryze Claims Solutions, LLC, the Seventh Circuit used mandamus to reverse a district court’s transfer order that was contrary to a forum-selection clause.
The action involved a forum-selection clause that designated Indiana state or federal courts as the proper forum. So when the plaintiff sued in California, a California district court transferred the case to Indiana. But after dismissing the federal claims, the Indiana district court transferred the the case back to California for resolution of the California state-law claims. The Indiana district court explained that its docket was congested, and it thought that California courts were better situated to decide California labor law. The defendant sought a writ of mandamus from the Seventh Circuit to reverse the transfer order.
The Seventh Circuit issued the writ. It noted that mandamus was appropriate for transfer issues, which otherwise escape appellate review. The court of appeals would grant the writ if the district court’s transfer decision was squarely wrong. And the decision in Ryze Claims was sufficiently wrong. The district court did not give sufficient weight to the forum-selection clause, and no exceptional circumstances existed that would warrant disregarding the clause.
In re Ryze Claims Solutions, LLC, 2020 WL 4432608 (7th Cir. Aug. 3, 2020), available at the Seventh Circuit and Westlaw.
Quick Notes
There were a couple other decisions of note.
In Sabal Trail Transmission, LLC v. 18.27 Acres of Land, the Eleventh Circuit refused to extend pendent appellate jurisdiction to a non-final ruling on attorneys’ fees and costs. A jury awarded the plaintiffs in Sabal Trail over $1.3 million in damages, and the district court denied the defendant’s motion for a new trial. The district court also awarded the plaintiffs attorneys’ fees and costs, though it put off deciding their amount. The defendant tried to appeal both the denial of a new trial and the award of fees and costs. Appellate jurisdiction over the new-trial issue was solid; a district court’s decision on the merits is final and appealable despite outstanding issues regarding attorneys’ fees. But the attorneys’ fees issue was not appealable. A decision awarding attorneys’ fees is not final until their amount is set. The Eleventh Circuit also refused to extend pendent appellate jurisdiction to the fees issue. The court of appeals could resolve the appealable issues without discussing fees. So pendent appellate jurisdiction was lacking.
Sabal Trail Transmission, LLC v. 18.27 Acres of Land, 2020 WL 4436331 (11th Cir. Aug. 3, 2020), available at the Eleventh Circuit and Westlaw.
And in Ashker v. Newsom, the Ninth Circuit held that it lacked jurisdiction to review a magistrate judge’s decision because the magistrate judge lacked the power to enter the appealed order. Courts normally review magistrate judge orders as if they were district court orders. But the Ninth Circuit has held that its appellate jurisdiction “depends on the magistrate judge’s lawful exercise of jurisdiction.” So if the magistrate judge lacked the power to make a decision on behalf of the district court, the court of appeals in turn lacks jurisdiction to review the merits of that decision. In Ashker, the district judge’s conduct suggested that it had designated the magistrate judge to make a final decision. But the conduct was ambiguous, and the Ninth Circuit wanted an explicit designation. There was none. So the Ninth Circuit lacked jurisdiction. It remanded the case to the district court to consider treating the magistrate judge’s decision as a report and recommendation.
Ashker v. Newsom, 2020 WL 4433120 (9th Cir. Aug. 3, 2020), available at the Ninth Circuit and Westlaw.