The Week in Federal Appellate Jurisdiction: February 28–March 6, 2021

Last week saw the Tenth Circuit reject an attempt to dispute the factual basis for a qualified-immunity denial. There were also decisions on finality after dismissals without prejudice, pendent appellate jurisdiction in an injunction appeal, and the relation forward of a premature notice of appeal.

• Assumed Facts & Blatant Contradictions in the Tenth Circuit
• Quick Notes

Assumed Facts & Blatant Contradictions in the Tenth Circuit

In Vette v. Sanders, the Tenth Circuit rejected a defendant’s attempts to challenge the factual basis for a qualified-immunity denial.

The Immunity Denial in Vette

The plaintiff in Vette alleged that, after being placed under arrest, a police officer punched him, hit him in the face with a dog chain, and let a police dog attack him. The plaintiff sued the officer for excessive force. And the district court denied the officer’s request for qualified immunity. According to the district court, a reasonable jury could conclude that the plaintiff’s allegations were true—he was punched, hit with a dog chain, and bitten by a police dog that the officer had let loose. If a jury so found, the officer’s conduct would have—of course—violated clearly established law.

The officer nevertheless appealed. And in that appeal, he challenged the factual basis for the district court’s immunity denial.

Challenges to the Factual Basis of Immunity Denials

Factual challenges to immunity denials are an immense problem in the courts of appeals. Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.

Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation. These improper appeals are also one of the main reasons why—should qualified immunity stick around in its current or an altered form—the rules governing qualified-immunity appeals need to change.

The Challenges in Vette

The officer in Vette raised two challenges to the factual basis for the district court’s denial of immunity.

First was the familiar challenge to the district court’s assessment of the record. In particular, the officer argued that the district court should not have treated the plaintiff’s verified complaint as evidence for summary-judgment purposes. But a verified pleading is effectively an affidavit. And affidavits are properly considered at summary-judgment. The district court was therefore correct in considering the plaintiff’s verified complaint in its qualified-immunity analysis.

Second, the officer invoked one of the exceptions to the general prohibition on challenging facts. Most courts of appeals have read the Supreme Court’s decision in Scott v. Harris to create such an exception: when something in the summary-judgment record “blatantly contradicts” the facts that the district court took as true, the court of appeals may reject the district court’s version of events and review the record de novo.

The officer in Vette argued that the record blatantly contradicted the district court’s factual basis for denying immunity. But nothing in the record satisfied that exception.

The officer’s own testimony was woefully insufficient. Conflicting testimony presents a classic fact question for the jury, not grounds for a blatant contradiction. The officer essentially argued that the plaintiff’s version of events contradicted the officer’s own testimony, and that amounted to a blatant contradiction. That’s nonsense. Indeed, the court doubted whether the defendant’s own testimony even could “constitute evidence satisfying the blatant-contradiction exception.”

Nor did photos of the plaintiff blatantly contradict the facts that the district court assumed to be true. The photos showed only some portions of the plaintiff’s body. They were accordingly consistent with the plaintiff’s contention that the officer hit other parts of the plaintiff’s body. And nothing in the photos showed that the dog’s attack was “accidental and fleeting,” as the officer contended. They instead showed markings consistent with several dog bites. The photos did “not blatantly contradict—and indeed, serve[d] to corroborate”—the plaintiff’s version of events.

The Tenth Circuit accordingly rejected the officer’s attempts to challenge the factual basis for the immunity denial. And as to that denial, the court of appeals affirmed. The Tenth Circuit’s decisions “would make it clear to every reasonable officer that punching an arrestee, hitting him in the face with a dog chain, and allowing a police dog to attack him, all after he is subdued, violates the Fourth Amendment.” The court accordingly remanded the case for further proceedings.

One final note. According to the district court’s docket, the appeal in Vette delayed any resolution of the plaintiff’s claims by about a year. The district court denied immunity on March 11, 2020. Shortly after the defendant appealed, the district court vacated a scheduling conference, and there is no significant docket activity since. It accordingly appears that this challenge to the factual basis for an immunity denial thus added wholly unnecessary delay—along with the expense and inconvenience—to this litigation.

Vette v. Sanders, 2021 WL 837126 (10th Cir. Mar. 5, 2021), available at the Tenth Circuit and Westlaw.

Quick Notes

In a pair of decisions—Edwards v. Hillman Group and Edwards v. Hillman—the Third Circuit held that a dismissal for failure to serve was final because the limitations period had run on the underlying claims. Both cases involved (among other things) Bivens claims. The district court dismissed those claims for failure to properly serve the defendants, after which the plaintiff appealed. Dismissals for failure to serve are necessarily without prejudice. And dismissals without prejudice can create finality problems. The plaintiff could fix the defect and re-institute the claims. So district court proceedings might not yet be over. But the running of the statute of limitations on the underlying claims assuages any concerns over refiling. And the limitations period had run by the time of the Edwards plaintiff’s appeal. The Third Circuit accordingly deemed the dismissals final.

Edwards v. Hillman Group, 2021 WL 772879 (3d Cir. Mar. 1, 2021), available at the Third Circuit and Westlaw.

Edwards v. Hillman, 2021 WL 777749 (3d Cir. Mar. 1, 2021), available at the Third Circuit and Westlaw.

In Mason v. AmTrust Financial Services, Inc., the Second Circuit reviewed the partial dismissal of a complaint alongside an injunction appeal. The district court in Mason dismissed some of the plaintiff’s claims and denied his request for a preliminary injunction. The plaintiff then appealed. The Second Circuit had jurisdiction to review the denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). And it extended pendent appellate jurisdiction to the partial dismissal. The district court’s denial of “a preliminary injunction was based solely on its resolution of the defendants’ motion to dismiss.” So “the same specific question” was at issue in both decisions. That meant the two decisions were “inextricably intertwined”—resolution of the appealable decision necessarily resolved the pendent one—and the exercise of pendent appellate jurisdiction was proper.

Mason v. AmTrust Financial Services, Inc., 2021 WL 772298 (2d Cir. Mar. 1, 2021), available at CourtListener and Westlaw.

And in Odjaghian v. HHS Technology Group, LLC, the Fourth Circuit held that a premature notice of appeal related forward to the district court’s final decision. The plaintiffs in Odjaghian sued several defendants for unpaid wages. The district court dismissed the claims against some of the defendants, and it entered a default judgment against others. But the plaintiffs appealed from the dismissal of some of their claims before the district court entered a final judgment. The notice of appeal was therefore premature.

The Fourth Circuit nevertheless held that it had jurisdiction over the appeal. The Fourth Circuit’s cumulative-finality doctrine—like that of most circuits—allows a premature notice of appeal to relate forward so long as the notice was filed after an order that would have been appealable if followed by a partial judgment under Federal Rule of Civil Procedure 54(b). The district court’s decision dismissing claims against some of the defendants could have been a partial (and immediately appealable) judgment under Rule 54(b). So the subsequent entry of a final judgment cured any defect in the premature notice.

Odjaghian v. HHS Technology Group, LLC, 2021 WL 798093 (4th Cir. Mar. 2, 2021), available at the Fourth Circuit and Westlaw.