August began with a slew of decisions on federal appellate jurisdiction.
August 13, 2019
This week’s roundup is slightly later than usual due to a hard drive failure. And it’s a big roundup—it was a busy week.
Let’s start with anti-SLAPP appeals.
Response to anti-SLAPP cert petition filed
The respondents filed their opposition to cert in Andreoli v. Youngevity International Corp., a case on the appealability of anti-SLAPP denials. I wrote about the cert petition several weeks ago. And as I noted there, an arguable circuit split exists on the appealability of anti-SLAPP denials.
The opposition brief largely contends that the split is illusory; although courts have reached different conclusions on the appealability of anti-SLAPP denials, those differences depend on the underlying state anti-SLAPP statutes.
This case could present some really interesting questions about the collateral-order doctrine.
Respondent’s Opposition to Petition for a Writ of Certiorari, Andreoli v. Youngevity International Corp., No. 19-20, available at the Supreme Court and Westlaw.
The week in qualified-immunity appeals
Lots of decisions in qualified-immunity appeals on the usual subjects: factual disputes on appeal, blatant contradictions, and the municipal-pendent-appeal rule (my new shorthand term for the practice of allowing municipalities to piggyback their own appeals on those of individual defendants; I don’t love the term, but I need a shortened way of referring to this practice).
The Fifth Circuit reminded defendants of the jurisdictional limits on qualified-immunity appeals (but also might have violated those limits)
Two decisions out of the Fifth Circuit involved the general bar in qualified-immunity appeals on reviewing whether a genuine fact issue exists.
In King v. LeBlanc, the Fifth Circuit rejected an appeal that solely contested the district court’s assumed facts. The plaintiff was an inmate who was left handcuffed in his cell and was attacked by his cellmate. The district court denied qualified-immunity to correctional officers who failed to protect the plaintiff, concluding that fact issues over the officers’ knowledge and conduct precluded summary judgment.
On appeal, the officers disputed only the district court’s factual assumptions. The Fifth Circuit held that it lacked jurisdiction over these arguments. And in doing so, it offered a pointed reminder of the limits on its jurisdiction:
We have made it clear time and time again that we lack jurisdiction to resolve the genuineness of any factual disputes; we may only review whether the factual disputes are material.
(Cleaned up.) For more, see this post on King from this past weekend.
But in Maldonado v. Rodriguez, Judge Dennis argued in dissent that the court had done precisely what King said was prohibited. Maldonado involved first amendment claims brought by former public employees after they were fired by the newly elected district attorney. The plaintiffs claimed that their termination was in retaliation for supporting the new district attorney’s political opponent. The district court denied the new district attorney’s motion for summary judgment on qualified-immunity grounds, and he appealed.
The Fifth Circuit held that the new district attorney was entitled to qualified immunity as to some of the plaintiffs. A prior case from that court had granted qualified immunity to a district attorney who fired an investigator for political activity, and according to the court no intervening decisions had clearly established the law in this area. (Judge Dennis also dissented on this point—the prior case, he argued, had clearly established the constitutional violation.) The court accordingly held that qualified immunity was warranted for claims by the plaintiffs who had positions similar or superior to that of an investigator. But genuine fact issues existed as to whether other plaintiffs held policy-making or confidential positions. The new district attorney was accordingly not entitled to qualified immunity on their claims.
Dissenting, Judge Dennis contended that fact issues existed as to all of the plaintiffs’ job duties. As he saw it, the majority had re-examined the evidence to conclude that some of the plaintiffs held policy-making or confidential positions, such that their termination did not violate clearly established law. And re-examining evidence is outside the scope of review in an interlocutory qualified-immunity appeal.
Also of note, the Fifth Circuit lacked jurisdiction over the denial of summary judgment on claims against the new district attorney in his official (as opposed to individual) capacity. Those were claims for municipal liability, and the denial of summary judgment on municipal liability is not normally appealable. Because the court had held only that any constitutional violations were not clearly established—not that they didn’t occur—it could not address the official-capacity claims via the municipal-pendent-appeal rule. More on that rule in a moment.
King v. LeBlanc, 2019 WL 3763524 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.
Maldonado v. Rodriguez, 2019 WL 3559632 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.
The Second Circuit split over jurisdiction to address a due process claim for New York’s administratively imposed post-release supervision
In Reyes v. Fischer, a divided Second Circuit held that it lacked jurisdiction in a qualified-immunity appeal to address whether the conditions of administratively imposed post-release supervision were more onerous than those of conditional release and thus violate due process. The split was irrelevant to the outcome, however; the majority held that it lacked jurisdiction to review the denial of qualified immunity, while the dissenter would have affirmed on the merits.
Reyes stemmed from New York’s practice of administratively imposing terms of post-release supervision on convicts without a judicial order imposing the supervision. Simplified a bit, New York law requires that criminal sentences include a period of post-release supervision. But for years after this requirement became law, judges neglected to include this supervision in sentences. So the New York State Department of Correctional Services began calculating and imposing terms of supervision without permission or input from the sentencing judge. In 2006, the Second Circuit held that this administratively imposed term of post-release supervision violated due process.
The plaintiff in Reyes was one of the convicts on whom the Department had unilaterally imposed a term of supervision. She was released early due to good behavior. Inmates released early for good behavior are normally subject to a terms of conditional release that apply until the date their sentence of confinement would have ended. But the plaintiff in Reyes was instead subject to the terms of the administratively imposed post-release supervision. And she claimed that these latter terms violated due process. The district court denied qualified immunity to the Department of Correctional Services officials, and they appealed.
The Second Circuit concluded that it needed to know whether the terms of post-release supervision were more onerous than the terms of conditional release—which the plaintiff would have been subject to had the post-supervision release never been imposed. That is, the terms of the wrongfully imposed post-release supervision needed to be more onerous than what the plaintiff would have normally received for those terms to violate due process. And fact issues existed as to the difference between the terms of post-release supervision and conditional release. The court lacked jurisdiction over those fact issues in an interlocutory qualified-immunity appeal.
Writing separately, Judge Hall would have held that the court had jurisdiction and affirmed the denial of qualified immunity. As Judge Hall saw things, any difference between the terms of post-release supervision and those of conditional release went to damages, not liability. So there were no fact questions on liability that would preclude jurisdiction over the appeal.
Reyes v. Fischer, 2019 WL 3755664 (2d Cir. 2019), available at the Second Circuit and Westlaw.
Two decisions on the blatant-contradiction rule
Two decisions rejected defendants’ invocation of the blatant-contradiction exception for qualified-immunity appeals.
In Coffey v. Carroll, the Sixth Circuit rejected police officers’ attempts to contest the facts in a qualified-immunity appeal, as nothing in the record blatantly contradicted the version of facts assumed by the district court. The parties disagreed about several relevant fact issues. As just one example, when the defendants found the plaintiff asleep on his couch, the defendants claimed they awoke him with only some taps; the plaintiff claimed the taps were followed with an unprovoked punch. When the officers disputed the plaintiff’s version of the facts on appeal, the Sixth Circuit concluded that the plaintiff’s version of the facts was not blatantly contradicted by the record.
The Third Circuit reached a similar conclusion in Eberhardinger v. City of York. That case involved a police chase and shooting. And the district court denied qualified immunity after concluding that fact issues existed as to whether the officer was in any danger at the time he shot the plaintiff. On appeal, the Third Circuit agreed—neither a video of the shooting nor physical evidence “unequivocally corroborate[d]” the officer’s version of the facts.
The Third Circuit’s brief discussion of physical evidence is interesting. Most cases invoking the blatant-contradiction exception involve videos. But I found in my recent study of the exception that not all do. Some involve physical evidence, witness testimony, or even arguments that the absence of evidence in the record blatantly contradicted the district court’s assumed facts. The blatant-contradiction exception is troubling in the context of video evidence; it’s questionable whether courts can even reliably identify blatant contradictions with video evidence. Applying the exception to even less-certain kinds of evidence is even more so.
Coffey v. Carroll, 2019 WL 3540799 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
Eberhardinger v. City of York, 2019 WL 3544021 (3d Cir. 2019), available at the Third Circuit and Westlaw.
The Eighth Circuit reviewed some (but not all) claims against an municipality under the municipal-pendent-appeal rule
In Mogard v. City of Milbank, the Eighth Circuit exercised pendent appellate jurisdiction over some claims against a municipality but not others. The case involved a police officer’s claims against two city officials and the city who employed him. The officer alleged that he was terminated without due process and in retaliation for speaking—both internally and to city officials—about a patrol vehicle’s tires and seatbelts. The defendants moved for summary judgment on the claims, which the district court denied. All defendants then appealed.
In the individual officers’ appeals, the court reversed. The court held that no due process violation occurred; the officer had not shown that he had a property interest in continued employment or that the defendants had damaged his reputation in connection with his firing. But on the retaliation claim, the Eighth Circuit held that any constitutional violation was not clearly established. The officer’s internal complaints about the vehicle’s safety were probably not protected under Garcetti v. Ceballos. And his speech to community leaders was not clearly protected; the defendants could have reasonably believed that this speech was part of the officer’s job and not protected. The court thus avoided deciding whether a constitutional violation occurred and decided the claims solely on the clearly established prong of the qualified-immunity inquiry.
That left the city’s appeal in an awkward position. The denial of summary judgment on a municipal-liability claim is normally not immediately appealable. But under the municipal-appeals rule that the courts of appeals have developed, municipalities can appeal these decisions alongside individual defendants’ qualified-immunity appeals once the appellate court decides that the individual defendants did not violate the constitution.
Here, the Eighth Circuit held that the individual defendants did not violate the officer’s due process rights. The Eighth Circuit accordingly extended pendent appellate jurisdiction over the due process claim against the city and reversed the denial of summary judgment. But the court had held only that any retaliation violation was not clearly established; it never said that no constitutional violation occurred. So resolution of the individual defendants’ appeal from their retaliation claims did not necessarily resolve the retaliation claim against the city. The Eighth Circuit accordingly lacked jurisdiction to review that claim, and it remanded for further proceedings on it.
Mogard v. City of Milbank, 2019 WL 3719802 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
The Third Circuit lacked jurisdiction to review a hold-back order for potential attorneys’ fees awards in the class action for Veterans Affairs nurses
In Gorgonzola v. Director, United States Office of Personnel Management, the Third Circuit held that it lacked jurisdiction to review an order requiring that a defendant hold 30% of any payments it made to class members for future attorneys’ fees awards.
Gorgonzola is a class action by retired Veterans Affairs nurses against the Office of Personnel Management. The Office handles the nurses’ retirement benefits. And a 2002 law changed the calculation of these benefits in a way that benefited many long-serving nurses. But the Office did not recalculate the benefits for everyone; it recalculated benefits only for those who filed claims with the Office. Several nurses then brought a class action seeking an order that the Office identify all potential beneficiaries, recalculate their pensions, pay past-due benefits, and adjust benefits going forward.
The district court eventually held that the Office had violated equal protection—it had treated retired nurses differently with no rational basis. The district court also held that its jurisdiction over the case extended only to the remedy of providing notice to affected class members; the court could not itself order payments. So in a series of orders, the district court approved notice forms for several groups of potential class members, which would inform the members of their potential right to increased benefits. The court also required that the Office “hold back” 30% of any retrospective payments to class members for possible attorneys’ fees awards. The Office then appealed the orders regarding notice and the hold-back order.
As for the notice orders, the Third Circuit noted that they might be appealable under 28 U.S.C. § 1292(a)(1) as injunctions. But the court could avoid deciding that issue because the appeals from the notice orders were moot. The Office had complied with the notice orders by the time the Third Circuit heard the case. And compliance with an injunction can moot an appeal. The Office’s real issue with the notices was their inclusion of information about the holding back of attorneys’ fees. But this issue was about the allocation of attorneys’ fees. And “[a] fight over attorneys’ fees cannot save an interlocutory appeal from mootness.”
The Third Circuit went on to hold that the hold-back order was not appealable. It was not an injunction because it merely secured funds for future use and did not grant any relief that anyone had sought. This was especially true because, under the district court’s jurisdictional ruling, the only substantive relief that the plaintiffs could seek in this case was notice—not payments of benefits. So the hold-back order did not affect the substantive relief.
Finally, the Third Circuit held that it could not exercise pendent appellate jurisdiction over the hold-back order; the mootness of the notice appeals extinguished any jurisdictional hook.
Gorgonzola v. Director, United States Office of Personnel Management, 2019 WL 3544017 (3d Cir. 2019), available at the Third Circuit and Westlaw.
The Fourth Circuit held that it could review interlocutory decisions by the Benefits Review Board in an appeal from the Board’s final decision
In a case that produced three separate opinions—none of which garnered a majority—the Fourth Circuit held in West Virginia Coal Workers’ Pneumoconiosis Fund v. Bell that it could review interlocutory orders of the Benefits Review Board in an appeal from the Board’s final decision.
Simplifying the case’s history a bit, a former coal miner sought benefits under the Black Lung Benefits Act. The West Virginia Coal Workers’ Pneumoconiosis Fund, which was responsible for any benefits payments, opposed the request and argued that the miner’s lung problems were due to his smoking cigarettes for 50 years. Both sides submitted expert testimony on the cause of the miner’s condition.
An administrative law judge first sided with the Fund and denied benefits, but the Benefits Review Board vacated that decision and remanded for reconsideration. The same ALJ again sided with the fund, but the Board again vacated and remanded that decision. Before a new ALJ, the miner prevailed. And on the Fund’s appeal, the Board affirmed. The Fund then sought review in the Fourth Circuit, arguing that the Board erred in vacating the first ALJ’s decisions denying benefits.
The panel produced three separate opinions. The lead opinion by Judge Richardson announced the judgment—reversal of the Board’s decisions vacating the first ALJ’s decisions. Judge Richardson also tackled two interesting procedural issues.
He first held that the court had jurisdiction to review the Board’s interlocutory orders vacating and remanding the first ALJ’s decisions. Once the final order had been entered, all earlier decisions merged into the final one and were subject to review on appeal. This conclusion, according to Judge Richardson, was mandated by both the Administrative Procedure Act—which provides that “[a] preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action”—and more general conceptions of appellate review. As Judge Richardson noted, “[i]t is a longstanding principle of law that, where appellate jurisdiction is limited to final orders, this limitation goes to the timing, not the availability, of review.” But he also noted that one Sixth Circuit decision—Bartley v. L & M Coal Co.—might be read to hold to the contrary.
Judge Richardson then held that the respondents (the miner and the Director of the Office of Workers’ Compensation Programs) had forfeited their response to the Fund’s main arguments on appeal by addressing only the Board’s last decision, not its previous two. The forfeiture issue arises when appellees do not respond—either sufficiently or at all—to an appellant’s arguments. (Bell involved parties that were designated as “petitioner” and “respondent,” but that distinction is irrelevant here.) Courts have differed on the consequence of an appellee’s inadequate response; some say appellees can forfeit arguments, while others say they can’t.
As Judge Richardson saw things, “an appellee’s wholesale failure to respond to a conspicuous, nonfrivolous argument in the appellant’s brief ordinarily constitutes a forfeiture.” This maintains the normal adversarial process, saves judges from doing all of the appellee’s work, and saves courts from deciding inadequately briefed issues. But Judge Richardson also concluded that the forfeiture in Bell should be excused.
West Virginia Coal Workers’ Pneumoconiosis Fund v. Bell, 2019 WL 3627393 (4th Cir. 2019), available at the Fourth Circuit and Westlaw.
The Tenth Circuit held that a conviction and sentence are appealable despite an outstanding restitution issue
In United States v. Paup, the Tenth Circuit held a conviction and sentence was final and appealable, even though an unresolved restitution issue was pending in the district court. The court thought the statutes on criminal appeals as well as two Supreme Court decisions—Dolan v. United States and Manrique v. United States—compelled such a conclusion.
I wrote about Paup over the weekend. And it seems like an okay outcome in this case; no one lost their opportunity to appeal. But treating different decisions near the end of district court proceedings as final ones—even though only only one of them marks the actual end of those proceedings—can create problems. In this context, it risks defendants missing their opportunities to appeal by waiting to appeal until after the restitution order (which might not happen under Corey v. United States) or, like the defendant in Manrique, by not filing a second notice of appeal after the restitution order.
United States v. Paup, 2019 WL 3756446 (10th Cir. 2019), available at the Tenth Circuit and Westlaw
Th Sixth Circuit held that a district court loses jurisdiction to enter a forfeiture order after the defendant has appealed the sentence and conviction
In United States v. Carman, the Sixth Circuit held that a district court lacked jurisdiction to enter a criminal forfeiture order after the defendant had filed his notice of appeal.
The defendant in had been convicted for her involvement in conspiracy to sell untaxed cigarettes. The government then sought an order of forfeiture, requesting a money judgment of $35 million. Several months later, the district court sentenced the defendant and entered a final judgment. But in doing so, the district court did not rule on the request for a money judgment or otherwise address forfeiture. The defendant then appealed. And four months later—after the defendant had filed her opening brief in the Sixth Circuit—the district court entered a $17.5 million forfeiture order. The defendant then appealed that order, too.
The Sixth Circuit held that the district court lacked jurisdiction to enter the forfeiture order. The defendant’s notice of appeal transferred jurisdiction over her case from the district court to the court of appeals. And although district courts retain jurisdiction to address some matters while a case is on appeal, those matters are limited and do not include altering the case itself. Because the defendant had appealed both her conviction and sentence, the district court lost authority to change either. And a forfeiture order would change the defendant’s sentence.
The government had asked the Sixth Circuit to take a “pragmatic” approach to the issue; after all (the government claimed), the district court would just reenter the forfeiture order on remand. But the court rejected this argument. Indeed, the government had failed to explain how the district court could enter the same restitution order and expand the defendant’s sentence after that sentence had been affirmed on appeal.
The court accordingly vacated the forfeiture order.
United States v. Carman, 2019 WL 3558985 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
The Third Circuit heard an appeal from an order compelling arbitration
In Jaludi v. Citigroup, the Third Circuit heard a plaintiff’s appeal from an order compelling arbitration of all of the plaintiff’s claims. The case is another example of a district court dismissing—rather than staying—an action after ordering arbitration to proceed. This practice, as I’ve noted before, likely circumvents the normal limits on arbitration appeals.
You can read more in my post about Jaludi.
Jaludi v. Citigroup, 2019 WL 3558978 (3d Cir. 2019), available at the Third Circuit and Westlaw.
The Third Circuit on appellate waivers and constitutional defects in criminal proceedings
In United States v. Porter, the Third Circuit held that a guilty plea prevented a criminal defendant from appealing the constitutionality of a search and seizure.
The defendant in Porter had been charged with possession with intent. He sought to suppress evidence that he argued was seized in violation of the Fourth Amendment, but the district court denied the suppression motion. The defendant then pleaded guilty. At the plea hearing, no one mentioned the motion to suppress. The sentencing memoranda also did not refer to appeals or the suppression of evidence. But at the sentencing hearing, defense counsel “took exception” to the district court’s suppression ruling to “preserve the record.” And the district court informed the defendant of his appellate rights, including his right to file an appeal and the 14-day deadline for doing so.
The Third Circuit held, however, that the defendant could not appeal his guilty plea. It began its analysis by clarifying its earlier caselaw on appealing an unconditional plea of guilty. That court had previously held that only “jurisdictional” defenses survive an unconditional guilty plea—that is, defenses that challenge the district court’s subject-matter jurisdiction. But that use of “jurisdictional” was an instance of courts’ loosely throwing around the term. In practice, calling a defense “jurisdictional” had merely been used as a conclusion that the defense might prevail on appeal. The Third Circuit accordingly joined other circuits in making clear “that a claim need not attack subject matter jurisdiction to survive an unconditional guilty plea.” Instead, survival of a claim depends on its constitutional relevance to the defendant’s conviction.
Turning to that latter question—the constitutional relevance of suppression issue—the court held that the matter was irrelevant to the validity of his conviction. The court noted that a guilty plea generally bars constitutional challenges to pretrial proceedings. An exception exists when everyone understands that a plea will not foreclose an appeal of the constitutional issue. But the defendant in Porter had not, in his plea, provided for the appeal of the suppression issue. He was accordingly powerless to challenge it after a guilty plea.
The Third Circuit also rejected the defendant’s argument that the district court’s statements at sentencing expanded his appellate rights. The court accordingly held that the defendant’s guilty plea prevented his appealing the suppression issue.
United States v. Porter, 2019 WL 3484251 (3d Cir. 2019), available at the Third Circuit and Westlaw.
The Ninth Circuit on immigration’s aggravated-felony bar on appellate review
In Flores-Vega v. Barr, the Ninth Circuit reviewed a claim for withholding of removal under the Convention Against Torture despite the immigrant’s aggravated-felony conviction.
Under 8 U.S.C. § 1252(a)(2)(C), appellate courts normally lack jurisdiction to review a removal order against an immigrant who is removable due to an aggravated felony conviction. But the Ninth Circuit has held that this bar does not apply to reviewing applications for relief under the Convention. Further, the bar applies only when withholding has been denied due to the aggravated felony conviction; it does not apply when withholding has been denied on the merits.
In Flores-Vega, the immigrant had been denied withholding on the merits—not due to his aggravated felony conviction. The Ninth Circuit accordingly held that it had jurisdiction to review the denial of withholding. On those merits, however, the court concluded that the immigrant had not shown that he was eligible for relief under the Convention. So the court denied the petition for review.
Flores-Vega v. Barr, 2019 WL 3520591 (9th Cir. 2019), available at the Ninth Circuit and Westlaw.
The Third Circuit decides two cases involving cumulative finality
Finally, there were a few decisions involving cumulative finality.
Federal litigants generally must wait until the end of district court proceedings—when all issues have been decided and all that remains is enforcing the judgment—before filing their notice of appeal. But sometimes they file too early, after the district court has decided an issue but before entry of a final judgment. These notices are premature and thus ineffective at the time they’re filed. And problems can arise if litigants do not file another notice once district court proceedings have ended. As a technical matter, the party has not filed a proper notice of appeal. And parties that do not file a proper notice forfeit their right to appellate review.
Courts and rulemakers have addressed this scenario with a doctrine called cumulative finality. The doctrine allows subsequent events to save a premature notice of appeal.
Two Third Circuit cases from this week illustrate one application of the doctrine. In both Smalls v. Riviera Towers Corp. and Easterling v. City of Newark, the court held that a notice of appeal filed after resolution only of the plaintiff’s claims was saved by the defendants’ subsequent voluntary dismissal of their cross-claims. This is one of the least-controversial applications of cumulative finality, though even it might not work in every circuit.
If you’re interested in cumulative finality, I wrote an entire article on the topic..