The practical equivalent of an injunction, multiple denials of qualified immunity, waiting for attorneys’ fees decisions, dismissals without prejudice, and more.
September 1, 2020
Last week saw a divided Third Circuit address when a district court decision is, practically speaking, an appealable injunction. The Third Circuit also issued two decisions holding that the scope of a qualified-immunity appeal includes prior denials of immunity. The Ninth Circuit explained why a request for attorneys’ fees does not stop the appeal clock (and cannot be re-characterized as a Rule 59 motion). And the Eleventh Circuit dismissed a remand appeal involving an erroneous certification of federal employment. Plus appeals from dismissals without prejudice, appealing a TRO, disputed facts in a qualified-immunity appeal, pendent appellate jurisdiction over a Monell claim, and direct appeals from a magistrate judge’s decision.
- The Third Circuit on Appealing the Practical Equivalent of an Injunction
- The Third Circuit Twice Held That the Scope of Qualified-Immunity Appeals Includes Earlier Denials of Qualified Immunity
- A Ninth Circuit Reminder That Outstanding Attorneys’ Fees Issues Do Not Stop the Appeal Clock
- The Eleventh Circuit on Appealing Remands After Withdrawn Certifications of Federal Employment
- The Fifth Circuit on Appeals From Dismissals Without Prejudice
- Quick Notes
The Third Circuit on Appealing the Practical Equivalent of an Injunction
In Defense Distributed v. Attorney General of New Jersey, a divided Third Circuit held that an order staying proceedings and dismissing a motion for a preliminary injunction was not immediately appealable.
Defense Distributed involved two similar actions—one in the Western District of Texas, the other in the District of New Jersey—challenging the regulation of distributing plans for making 3D-printed guns. The Texas suit was filed first, and the New Jersey district court decided to stay all proceedings until resolution of the Texas suit. The New Jersey district court also dismissed the plaintiffs’ request for a preliminary injunction, noting that the plaintiffs could renew their request once the stay was lifted. The plaintiffs then appealed both the stay order and the dismissal of the preliminary-injunction motion.
A majority of the Third Circuit held that the district court had not entered an appealable injunction. The district court had not expressly denied an injunction. So the court of appeals had to apply the three-part test from Carson v. American Brands, Inc. to determine whether the district court had, practically speaking, denied an injunction.
The Third Circuit concluded that the district court’s decision failed at the first step of the Carson inquiry: the district court’s stay decision did not effectively deny a preliminary injunction but instead postponed resolution of the matter. The district court had entered a normal stay of proceedings. And stays are not immediately appealable.
The court of appeals also concluded that the dismissal of the request for an injunction did not effectively deny an injunction. The district court had merely “remov[ed] from its docket a motion that would not be acted on soon.” By dismissing the motion without prejudice, the district court “clearly conveyed that its order was not the final word on the request.” The procedural resolution of the motion did not address the underlying merits of the injunction.
The Third Circuit went on to explain that even if the district court’s decision effectively denied an injunction, the decision failed the other two Carson requirements. There was no risk of irreparable harm, and the plaintiffs could obtain effective relief after a final judgment.
Dissenting, Judge Phipps contended that the district court had practically denied a preliminary injunction. And in denying immediate appellate review, the majority had foreclosed any review of the district court’s decision to stay its proceedings in favor of the Texas action.
Defense Distributed v. Attorney General of New Jersey, 2020 WL 5001608 (3d Cir. Aug. 25, 2020), available at the Third Circuit and Westlaw.
The Third Circuit Twice Held That the Scope of Qualified-Immunity Appeals Includes Earlier Denials of Qualified Immunity
The Third Circuit issued back-to-back opinions holding that it could review earlier denials of qualified immunity in subsequent appeals from the denial of immunity.
First was Starnes v. Butler County Court of Common Pleas. The plaintiff in Starnes was a former court employee who brought several claims against a local judge, including First Amendment claims and an equal-protection sex-discrimination claim. The district court denied the judge’s request for immunity on the First Amendment claims. It also dismissed the sex-discrimination claim with leave to amend. The judge did not file a timely appeal from this decision. The plaintiff later filed an amended complaint, and the judge again sought qualified immunity. The district court denied that motion. The judge then appealed.
Second was Weimer v. County of Fayette. Simplifying a bit, the plaintiff in Weimer—who had been exonerated of murder after spending 11 years in prison—brought several claims against a district attorney. When the district attorney sought absolute prosecutorial immunity, the district court allowed some claims to proceed but dismissed others. The district court also invited the plaintiff to amend her complaint, and the plaintiff did so. The defendant did not appeal this decision. About six months later, the district court denied the district attorney’s request for qualified immunity on the amended claims. The district attorney then appealed.
In both Starnes and Weimer, the defendant did not file a timely appeal from the initial denial of immunity. But the Third Circuit held that it could review the initial denial of immunity alongside the appeal from the later denial of immunity. The court explained that failure to take an interlocutory appeal generally does not forfeit an immunity defense. The defendant can instead wait until the district court enters another appealable order, after which the defendant can seek appellate review of immunity. Normally that second appealable order is a final judgment. The Third Circuit saw no reason to treat a second denial of immunity any differently. To hold otherwise would encourage piecemeal appeals: one appeal from the first denial of qualified immunity and another from the second.
There was also an issue in Weimer with the notice of appeal. Federal Rule of Appellate Procedure 3(c) requires that an appellant designate in its notice of appeal the district court decisions it intends to appeal. The district attorney in Weimer had designated only the second denial of immunity in her notice of appeal. But courts will exercise jurisdiction over unspecified decisions so long as “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” The notice in Weimer satisfied all three requirements. Both decisions involved immunity, the district attorney’s intent to appeal the earlier decision was clear from her opening brief, and the omission did not prejudice the plaintiff.
Starnes v. Butler County Court of Common Pleas, 2020 WL 4930260 (3d Cir. Aug. 24, 2020), available at the Third Circuit and Westlaw.
Weimer v. County of Fayette, 2020 WL 5000030 (3d Cir. Aug. 25, 2020), available at the Third Circuit and Westlaw.
A Ninth Circuit Reminder That Outstanding Attorneys’ Fees Issues Do Not Stop the Appeal Clock
In Nutrition Distribution LLC v. IronMag Labs, LLC, the Ninth Circuit held that a motion for attorneys’ fees was not a Rule 59 motion and thus did not extend the time to appeal.
Nutrition Distribution was a deceptive-advertising case brought under the Lanham Act. The district court enjoined the defendant’s advertising. In that same order, the district court declined to award the plaintiff attorneys’ fees; the case was not “exceptional,” which the Lanham Act requires for an award of fees. The district court then entered a Rule 58 final judgment. But the plaintiff did not file a notice of appeal. Instead, two weeks after the judgment, the plaintiff requested attorneys’ fees again, arguing that the case was, in fact, “exceptional.” The district court denied this request about a month later, and the plaintiff then appealed both the merits (the district court had denied the plaintiff’s request for damages) and the fees decision.
The Ninth Circuit held that the merits appeal was untimely. Under Federal Rule of Appellate Procedure 4(a)(1)(A), the plaintiff had 30 days to appeal after the district court entered its judgment. Waiting until after the district court denied the post-judgment request for attorneys’ fees was too late.
The court of appeals also explained that the motion for fees did not extend the time for filing the notice of appeal. To be sure, certain post-judgment motions (like a motion for a new trial under Federal Rule of Civil Procedure 59) extend the time for appealing. But a motion for attorneys’ fees is not one of those motions. Indeed, a motion for fees does not extend the time to appeal unless the district court delays entry of the judgment to decide fees and costs under Rule 58(e):
Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorney’s fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.
But for Rule 58(e) to apply, the district court must expressly invoke it. The district court in Nutrition Distribution did not do so.
The Ninth Circuit also declined to treat the plaintiff’s motion for fees as a Rule 59 motion. Doing so would be an end-run around Rule 58(e)’s requirement that the district court itself extend the deadline:
The whole point of Rule 58(e) is to allow—but not require—district courts to treat attorneys’ fees motions as having “the same effect” as a Rule 59 motion for purposes of filing a notice of appeal. [The plaintiff] would instead make Rule 58(e)’s procedure advisory. It is hard to imagine this is what the drafters of the 1993 amendments to the Federal Rules had in mind.
In fact, “this is not what they had in mind.” The 1993 amendments (which added Rule 58(e)) were in response to the Supreme Court’s holding that motions for attorneys’ fees cannot be re-characterized as Rule 59 motions.
Nutrition Distribution LLC v. IronMag Labs, LLC, 2020 WL 5001828 (9th Cir. Aug. 25, 2020), available at the Ninth Circuit and Westlaw.
The Eleventh Circuit on Appealing Remands After Withdrawn Certifications of Federal Employment
In Thomas v. Phoebe Putney Health System, Inc., the Eleventh Circuit held that it lacked jurisdiction to review an order remanding an action to state court after the United States withdrew a certification that deemed the defendants to be federal employees.
The plaintiffs’ child died while being treated by a doctor at a local hospital. They sued the doctor, hospital, and some other defendants in state court. The United States then removed the case to federal court. Invoking the Federally Supported Health Care Assistance Act of 1999, the government certified that that the defendants were Public Health Service employees acting within the scope of their employment. This certification substituted the United States as the defendant and converted the suit to one under the Federal Tort Claims Act. But the government later conceded that its certification was in error. The district court then remanded the suit to state court, and the defendants appealed.
The Eleventh Circuit held that it lacked jurisdiction over the appeal. Under 28 U.S.C. § 1447(d), orders remanding a case to state court are generally not appealable. The United States’s withdrawal of its certification left the district court without subject-matter jurisdiction. And no exception to the general rule against appellate review—such as that for orders remanding suits removed under the Westfall Act—applied.
Thomas v. Phoebe Putney Health System, Inc., 2020 WL 5001604 (11th Cir. Aug. 25, 2020), available at the Eleventh Circuit and Westlaw.
The Fifth Circuit on Appeals From Dismissals Without Prejudice
The Fifth Circuit heard two appeals from dismissals without prejudice.
In Umbrella Investment Group, L.L.C. v. Wolters Kluwer Financial Services, Inc., the court explained that a decision is final and appealable so long as the district court is finished with the case.
The plaintiff in Umbrella Investment had obtained a loan for developing a bar. But when the loan came up for renewal, the lender required that the plaintiff obtain flood insurance. The plaintiff couldn’t do so, leading to the property being foreclosed on. The plaintiff then sued a company that had assured the plaintiff that flood insurance was not required. The district court determined that the plaintiff’s claims—which alleged fraud—lacked the specificity required by Rule 9(b). The district court accordingly dismissed all claims. Its order doing so said the dismissal was without prejudice.
In the plaintiff’s appeal, the defendant argued that the district court had not issued a final, appealable decision. The Fifth Circuit disagreed. The court distinguished dismissals of a complaint from dismissals of an entire action—the first being non-final, the second being final. The Fifth Circuit said that “a judgment dismissing all claims is a judgment dismissing an action.” And “to avert traps for the unwary in ambiguous cases, the court treats a decision/judgment on ‘all claims’ as final and appealable.” (Cleaned up.) Because “the district court denied relief, dismissed the case, and ended this suit so far as the court was concerned,” its decision was final and appealable.
In Donahue v. Wilder, the Fifth Circuit held that the impossibility of curing the reasons for a without-prejudice dismissal meant that the dismissal was final and appealable.
Donahue involved an incarcerated plaintiff’s claims against prison staff for inadequate medical care. The district court dismissed the suit due to the plaintiff’s failing to exhaust prison remedies. That dismissal was without prejudice.
The Fifth Circuit held that it had jurisdiction over the appeal. The plaintiff in Donahue was now time-barred from exhausting administrative remedies. Because the plaintiff could not cure the reason for the without-prejudice dismissal, the Fifth Circuit deemed the decision sufficiently final for appeal purposes.
Umbrella Investment Group, L.L.C. v. Wolters Kluwer Financial Services, Inc., 2020 WL 5015456 (5th Cir. Aug. 25, 2020), available at the Fifth Circuit and Westlaw.
Donahue v. Wilder, 2020 WL 5033006 (5th Cir. Aug. 24, 2020), available at the Fifth Circuit and Westlaw.
Quick Notes
In Uniformed Fire Officers Association v. de Blasio, the Second Circuit held that a temporary-restraining order was an injunction for purposes of 28 U.S.C. § 1292(a)(1). The district court in the case issued a TRO prohibiting the disclosure of citizen complaints against law-enforcement officers. But it soon thereafter modified the TRO to exempt the New York Civil Liberties Union (which had obtained the records via a public-records request). Unions representing law-enforcement officers appealed this order and sought to stay the exemption pending the appeal. Appellate jurisdiction was uncertain, however, because TROs are normally not appealable. But they can be when, among other things, the TRO could “have a serious, perhaps irreparable, consequence.” That was the case here. Once the information was disclosed, the disclosure could not be undone. The Second Circuit accordingly had jurisdiction to entertain the stay motion.
Uniformed Fire Officers Association v. de Blasio, 2020 WL 5048477 (Aug. 27, 2020), available at the Second Circuit and Westlaw.
In Franco v. Gunsalus, the Second Circuit dismissed a qualified-immunity appeal in which the defendants challenged the genuineness of fact disputes. Franco involved excessive-force and other claims against police officers who struck and arrested the plaintiff. The district court denied qualified immunity, concluding that a genuine dispute existed as to whether an officer had ordered the plaintiff to disperse before approaching the plaintiff. On appeal, the officers refused to take as true the plaintiff-favorable version of that fact issue (that no order to disperse had been made) for purposes of the appeal. That, the Second Circuit concluded, deprived it of appellate jurisdiction. In an appeal from the denial of qualified immunity at summary judgment, the court of appeals can address only the materiality of any factual disputes, not their genuineness.
Franco v. Gunsalus, 2020 WL 5079261 (2d Cir. Aug. 28, 2020), available at the Second Circuit and Westlaw.
In EHM Productions, Inc. v. Starline Tours of Hollywood, Inc., the Ninth Circuit applied its rule for appealing dismissals without prejudice that requires meaningful district court involvement in the dismissal. Details in EHM Productions are sparse, but it appears that the district court had dismissed the defendant’s counterclaim, after which the parties stipulated to voluntarily dismiss all outstanding claims without prejudice. In the defendant’s appeal from its dismissed counterclaim, the Ninth Circuit noted that it generally lacks appellate jurisdiction after this sort of dismissal. The Ninth Circuit has created an exception to that general rule when (1) the district court is meaningfully involved in the dismissal and (2) there is no evidence of an intent to manufacture an interlocutory appeal. In EHM Productions, the district court was not meaningfully involved; the parties stipulated to the dismissal on their own, with no court involvement. And no “unambiguous evidence” existed showing that the parties intended for the dismissal to be with prejudice. The Ninth Circuit accordingly dismissed the appeal.
EHM Productions, Inc. v. Starline Tours of Hollywood, Inc., 2020 WL 5090413 (9th Cir. Aug. 28, 2020), available at the Ninth Circuit and Westlaw.
In Thurmond v. Andrews, the Eighth Circuit held that it lacked pendent appellate jurisdiction to review a municipal appeal alongside a qualified-immunity appeal. The plaintiffs in Thurmond were incarcerated in Faulkner County, Arkansas, and they sued both the county and two prison employees for unconstitutional conditions of confinement. The district court denied the individual defendants’ request for qualified immunity. It also denied the county’s motion to dismiss. All defendants then appealed. The Eighth Circuit held that, as to the individual defendants, the law was not clearly established. So they were entitled to immunity. But the resolution of the individual defendants’ appeal did not necessarily resolve the claims against the county. That meant no pendent jurisdiction existed over the county’s appeal, and the Eighth Circuit dismissed it.
Thurmond v. Andrews, 2020 WL 5079332 (8th Cir. Aug. 28, 2020), available at the Eighth Circuit and Westlaw.
And in United States v. Wilson, the Eleventh Circuit held that it lacked jurisdiction to review whether a magistrate judge properly allowed a defendant to proceed pro se, as the defendant never sought review of that decision in the district court. At a hearing to revoke his supervised release, the defendant in Wilson elected to represent himself. A magistrate judge recommended that the defendant’s supervised release be revoked. The district court held a full revocation hearing and revoked supervised release. The defendant then appealed to the Eleventh Circuit, arguing that the magistrate judge had “failed to ensure that he knowingly and intelligently waived his right to counsel.” But the defendant never raised this issue in the district court. So he was effectively trying to appeal a magistrate judge’s decision directly to a court of appeals. And the courts of appeals lack jurisdiction to hear direct appeals from the decisions of magistrate judges.
United States v. Wilson, 2020 WL 5048437 (11th Cir. Aug. 27, 2020), available at the Eleventh Circuit and Westlaw.