Finality in administrative remands, implied § 1292(b) certifications, immediate review of Rule 41(g) motions, qualified-immunity appeals, common law foreign-sovereign-immunity appeals, and more.
September 7, 2021
Last week, the Eighth Circuit tackled the administrative remand rule and—finding it didn’t apply—inferred a § 1292(b) certification by the district court. The Eleventh Circuit reviewed a motion that challenged the filtering procedures for reviewing seized evidence. A handful of courts refused to review additional issues and defenses as part of qualified-immunity appeals. The D.C. Circuit reviewed the denial of common law foreign-sovereign immunity. The Second Circuit passed on deciding whether a represented party could invoke the prison-mailbox rule for filing a notice of appeal. And the Seventh Circuit concluded that two motions seeking transcripts were the functional equivalent of a timely notice of appeal.
- The Eighth Circuit on Administrative Remands & Implied § 1292(b) Certifications
- The Eleventh Circuit Reviewed a Denial Rule 41(g) Motion That Challenged Filtering Procedures for Attorney-Client Materials
- Some Limits on the Scope of Qualified-Immunity Appeals
- The D.C. Circuit Heard an Appeal From the Denial of Common Law Foreign-Sovereign Immunity
- The Second Circuit Avoided Deciding Whether the Mailbox Rule Applies to Represented Parties
- The Seventh Circuit Determined That Motions for Transcripts Were Effectively a Notice of Appeal
The Eighth Circuit on Administrative Remands & Implied § 1292(b) Certifications
In City of Council Bluffs v. U.S. Department of the Interior, the Eighth Circuit determined that an order remanding a dispute to an agency was not final. The court nevertheless heard the appeal, concluding that the district court had implicitly certified the remand for an appeal under 28 U.S.C. § 1292(b).
Council Bluffs involved a dispute over whether certain land could be used for gaming. The National Indian Gaming Commission concluded that it could. The states of Iowa and Nebraska, along with the City of Council Bluffs, challenged that decision in federal court. The district court concluded that a statute—the Ponca Restoration Act—did not preclude using the land for gaming. But the district court also thought that the Commission had not considered a relevant factor in determining whether the land was eligible. The district court accordingly remanded the dispute to the Commission for further consideration.
The district court also denied a request to certify its decision for an immediate appeal under § 1292(b), as the court thought that its decision was final and appealable. The states and city then appealed to the Eighth Circuit, intending to challenge the district court’s decision that the Ponca Restoration Act did not preclude gaming on the land in question.
The Eighth Circuit initially determined that the remand was not a final decision under the administrative-remand rule. As a general rule, district court orders remanding a case to an agency for further proceedings are not final or appealable. More remains to be done before the agency, which can then result in further review in the district court and ultimately an appeal. There are exceptions to this rule. For example, remands that require only ministerial or technical action of the agency can be final. And courts of appeals will allow appeals when the remand might preclude any future opportunity for appellate review.
None of the exceptions applied in Council Bluffs. The proceedings on remand would be more than ministerial or technical—they would involve further consideration of the facts. And the Eighth Circuit said that the second exception mentioned above—when the remand might preclude any future appellate review—applied only when the federal government was appealing. In Council Bluffs, the challengers to the administrative action were appealing. So there was no concern that the National Indian Gaming Commission would lose any chance at appellate review.
The Eighth Circuit nevertheless determined that it could hear the appeal via § 1292(b). The district court denied the request for certification only because it thought that its decision was final and thus ineligible for certification. In its discussion of the certification request, the district court made clear that it thought an immediate appeal was appropriate. The district court merely thought that a § 1292(b) certification wasn’t necessary. The Eighth Circuit concluded that “but for its belief that [its] order was final, the district court believed the statutory requirements for interlocutory appeal were fulfilled.” Rather than remand the case for an inevitable § 1292(b) certification, the Eighth Circuit deemed the case implicitly certified by the district court and accepted the appeal.
City of Council Bluffs v. U.S. Department of the Interior, 2021 WL 3848159 (8th Cir. Aug. 30, 2021), available at the Eighth Circuit and Westlaw.
The Eleventh Circuit Reviewed a Denial Rule 41(g) Motion That Challenged Filtering Procedures for Attorney-Client Materials
In In re Sealed Search Warrant, the Eleventh Circuit heard an appeal from a Federal Rule of Criminal Procedure 41(g) motion challenging the filtering procedures for seized evidence.
Sealed Search Warrant arose from the seizure of materials from a company’s offices, which included material from the office of an in-house attorney. The government organized a filter team to identify potentially privileged materials. Invoking Rule 41(g), the operators of the company then sued to prohibit the filter team from reviewing any materials unless the operators agreed or the court so ordered after in camera review. The district court modified the filter protocol but did not bar the filter team from further review without the operators’ agreement or a court order. The operators then appealed.
The Eleventh Circuit held that it had jurisdiction to review the district court’s decision. Normally a court of appeals lacks jurisdiction to immediately review motions for the return of seized property. But jurisdiction can exist when “the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant.” The Eleventh Circuit concluded that the operators’ motion was sufficiently independent from any criminal proceedings. The operators did not attack the Fourth Amendment validity of the seizure, so their motion was not tied to the ongoing criminal investigation of them. There was also “no complaint, arrest, detention, or indictment.” That meant there was no criminal prosecution “in esse.” And were there to be any effective appellate review, it had to be immediate. Only immediate review could protect the confidentiality interest that the operators claimed to have in the seized materials.
In re Sealed Search Warrant, 2021 WL 3852229 (11th Cir. Aug. 30, 2021), available at the Eleventh Circuit and Westlaw.
Some Limits on the Scope of Qualified-Immunity Appeals
Defendants have a right to appeal from the denial of qualified immunity. And although courts have continuously expanded the scope of these appeals, they are not without any limits. So courts don’t always allow defendants to raise other defenses alongside a qualified-immunity appeal. And when a district court denies immunity at summary judgment, defendants generally must take as given the district court’s determination of what facts a reasonable factfinder could find. The defendant can argue only that those facts don’t make out a violation of clearly established law.
Last week saw several cases wrestling with the scope of qualified-immunity appeals.
The Sixth Circuit Dismissed Challenges to the Factual Basis for a Qualified-Immunity Denial
In Colson v. City of Alcoa, the Sixth Circuit affirmed the denial of qualified immunity in a case alleging deliberate indifference to medical needs. The court also dismissed the appeal to the extent it challenged the factual basis for the immunity denial.
The plaintiff in Colson was arrested for driving while intoxicated. While the police were forcing the plaintiff into a squad car, the plaintiff injured her leg. A nurse at the jail performed a brief examination of the defendant’s knee and saw nothing wrong. Later medical examination showed that the plaintiff had severely injured her leg: “she was diagnosed with a fractured tibia, torn anterior cruciate ligament, and a torn lateral collateral ligament.” The plaintiff then sued the officer who was present for the nurse’s examination, claiming that the officer was deliberately indifferent to the plaintiff’s medical needs. When the officer sought qualified immunity, the district court determined that genuine fact issues existed as to whether the officer knew of and disregarded the plaintiff’s need for medical attention. The officer then appealed.
A split Sixth Circuit affirmed. In the course of doing so, the court dismissed the officer’s challenge to the factual basis of the immunity denial. The officer contended that the plaintiff’s injuries would not have been obvious. But in doing so, the officer failed to accept the district court’s conclusions as to what facts a reasonable jury could find. “Put another way, [the officer] contest[ed] what really happened between the parties.” And that issue was outside of the court’s jurisdiction in a qualified-immunity appeal.
Judge Readler dissented to argue that a video of events blatantly contradicted the factual basis for the immunity denial. Among the factual disputes identified by the district court was whether the nurse gave a medical opinion. And Judge Readler thought the video “plainly show[ed]” that the nurse examined the plaintiff (albeit briefly) and offered an opinion (“albeit somewhat inartfully”). And no case had clearly established that the officer could not rely on this medical opinion.
Colson v. City of Alcoa, 2021 WL 3913040 (6th Cir. Sep. 1, 2021), available at the Sixth Circuit and Westlaw.
The Sixth Circuit Refused to Consider Other Defenses in a Qualified-Immunity Appeal
In DeCrane v. Eckart, the Sixth Circuit reviewed the denial of qualified immunity in a case alleging First Amendment retaliation. But the court lacked jurisdiction over other defenses. The Sixth Circuit explained that its jurisdiction did not extend to every issue in the order denying immunity. So the court would not review a statute-of-limitations defense, as the defense did not provide an immunity from suit. Nor would the court review whether the plaintiff had offered sufficient evidence for a reasonable jury to find causation. The district court had determined that a reasonable jury could find causation. The defendant (and the Sixth Circuit) were bound by that determination in an interlocutory appeal from the denial of qualified immunity.
DeCrane v. Eckart, 2021 WL 3909802 (6th Cir. Sep. 1, 2021), available at the Sixth Circuit and Westlaw.
The Ninth Circuit Dismissed Heck and Fact-Based Arguments in a Qualified-Immunity Appeal
In Holloway v. Horn, the Ninth Circuit affirmed the denial of qualified immunity in an excessive-force case. The court also refused to consider two arguments that the defendant made on appeal. First, the court said that it lacked jurisdiction to review whether the plaintiff’s claims were barred by Heck v. Humphrey. Second, the court refused to consider the defendant’s challenge to the factual basis for the immunity denial. According to the district court, a genuine fact issue existed as to whether the defendant shot the plaintiff while the plaintiff was trying to surrender. The defendant challenged that determination on appeal. But the Ninth Circuit lacked jurisdiction to review the genuineness of this fact issue.
Holloway v. Horn, 2021 WL 3929972 (9th Cir. Sep. 2, 2021), available at the Ninth Circuit and Westlaw.
The D.C. Circuit Heard an Appeal From the Denial of Common Law Foreign-Sovereign Immunity
In Broidy Capital Management LLC v. Muzin, the D.C. Circuit said that it had jurisdiction to review the denial of common law foreign-sovereign immunity.
Simplifying a bit, the plaintiff in Broidy Capital Management was a vocal critic of Qatar. He alleged that Qatar hired a U.S. public-relations firm to discredit him. Part of the firm’s efforts, the plaintiff alleged, included illegally accessing and disseminating his emails. The public-relations firm invoked foreign-sovereign immunity, arguing that it was acting as an agent of Qatar. The district court rejected this defense. The public-relations firm then appealed.
The D.C. Circuit ultimately affirmed the denial of immunity. But before doing so, the court had to address its jurisdiction. Because the public-relations firm was not a foreign state, the Foreign Sovereign Immunities Act—and the rule allowing appeals from denials of immunity under the Act—did not apply. The D.C. Circuit nevertheless concluded that denials of common-law foreign sovereign immunity—also referred to as “conduct-based immunity”—were immediately appealable. Like other varieties of sovereign immunity, this conduct-based immunity protects defendants from litigation that would impinge on sovereignty. So a colorable claim of conduct-based immunity is immediately appealable. The D.C. Circuit noted, however, that its decision on the merits of immunity would “mark some limits” on invoking it. By limiting the situations in which defendants could invoke conduct-based immunity, the court would “ensure that [its] acceptance of jurisdiction here does not invite a host of appeals asserting non-colorable claims of immunity.”
Broidy Capital Management LLC v. Muzin, 2021 WL 3950185 (D.C. Cir. Sep. 3, 2021), available at the D.C. Circuit and Westlaw.
The Second Circuit Avoided Deciding Whether the Mailbox Rule Applies to Represented Parties
In United States v. Waite, the government waived any challenge to the untimeliness of a criminal appeal. The Second Circuit could thus avoid deciding whether a represented defendant can invoke the prison-mailbox rule. That rule deems an imprisoned defendant’s notice of appeal to be filed upon its delivery to prison authorities. Federal Rule of Appellate Procedure 4(c)(1) applies this rule to pro se parties. But the Second Circuit has not yet decided whether the prison-mailbox rule applies “where (1) the prisoner is represented by counsel at the time the notice of appeal is mailed; and (2) the untimely filing is due to the prisoner’s use of an incorrect mailing address, rather than to delays in a prison’s mail system beyond a prisoner’s control.” That issue will have to wait for another case.
United States v. Waite, 2021 WL 3870712 (2d Cir. Aug. 31, 2021), available at CourtListener and Westlaw.
The Seventh Circuit Determined That Motions for Transcripts Were Effectively a Notice of Appeal
Finally, in Wagner v. Baker, the Seventh Circuit determined that an appeal was timely filed, as the plaintiff’s requests for transcripts were the functional equivalent of a notice of appeal. The two motions for transcripts were filed within 30 days of the district court’s judgment. One said that the plaintiff intended to appeal to the Seventh Circuit. Another mentioned the district court decisions that the plaintiff intended to appeal and named the plaintiff and defendant. “Because [these motions] contain[ed] the name of the party taking the appeal, designate[d] the jury verdict and the summary-judgment order as the rulings being appealed, and name [the] court, these filings [were] functional equivalents of a notice of appeal under Rule 3.”
Wagner v. Baker, 2021 WL 4026151 (7th Cir. Sep. 3, 2021), available at the Seventh Circuit and Westlaw.