The Week in Federal Appellate Jurisdiction: February 9–15, 2020

Last week saw decisions on appealing bankruptcy remands and orders distributing receivership assets. The Federal Circuit used mandamus to address an unresolved and important venue issue in patent-infringement suits. And the Third Circuit dismissed an attorney’s appeal because the attorney was not named in the notice of appeal. Plus an appeal from an unexplained denial of qualified immunity and a new cert petition that suggests overruling Mitchell v. Forsyth.

• The Ninth Circuit on appeals from bankruptcy remands
• The Federal Circuit and advisory mandamus
• The Sixth Circuit reviewed an order distributing assets of a receivership estate
• The Third Circuit dismissed an attorney’s appeal because the notice of appeal did not name the attorney
• The Tenth Circuit and unspecified fact issues in qualified-immunity appeals
• New cert petition mentions overruling Mitchell v. Forysth

The Ninth Circuit on appeals from bankruptcy remands

In In re Marino, the Ninth Circuit held that it lacked jurisdiction to review a Bankruptcy Appellate Panel decision that remanded the dispute back to the bankruptcy court. The opinion provides a nice summary of the Ninth Circuit’s law on appealing bankruptcy remands. These remands mean further proceedings in the bankruptcy court. And the parties might want to appeal the outcome of those proceedings. So it’s normally better to delay any appeals until after the bankruptcy court resolves the dispute. The court of appeals can then decide all issues that the action presents in a single appeal.

Full coverage here: A Ninth Circuit Primer on Appealing Bankruptcy Remands.

In re Marino, 2020 WL 612816 (9th Cir. Feb. 10, 2020), available at the Ninth Circuit and Westlaw.

The Federal Circuit and advisory mandamus

In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.

Full coverage here: The Federal Circuit and Advisory Mandamus on Improper Venue.

In re Google LLC, 2020 WL 728165 (Fed. Cir. Feb. 13, 2020), available at the Federal Circuit and Westlaw.

The Sixth Circuit reviewed an order distributing assets of a receivership estate

In Gordon v. Dadante, the Sixth Circuit held that it could review an interlocutory order distributing receivership assets via the collateral-order doctrine.

Gordon was an investor’s suit against several defendants involved in an investment fund, alleging that the fund was essentially a Ponzi scheme. The district court appointed a receiver to locate and preserve the fund’s assets. The receiver was eventually successful in acquiring more than the investors had lost in the fund (the receiver sold at a favorable price stock that the fund had acquired), and the investors received 110% of what they invested. The district court later concluded that the receiver’s success in recovering funds warranted an increase in the receiver’s compensation of almost $2.5 million. Once some fees and that additional compensation were paid, the receivership could be wound up. The receiver was accordingly ordered to distribute to himself the fees and extra compensation and file his final report. Several investors immediately appealed, challenging these distributions.

The Sixth Circuit held that it had jurisdiction even though the receivership had not been completely resolved. The court had previously held that orders conclusively determining the disposition of receivership assets are immediately appealable under the collateral-order doctrine. The district court had conclusively ordered the distribution of the receivership assets. The distribution of assets was separate from the merits of the underlying action. And the distribution could be effectively unreviewable in a later appeal as the distributed assets might be impossible to recover.

On the merits, the Sixth Circuit affirmed in part, holding that some of the extra compensation was appropriate and some was not.

Gordon v. Dadante, 2020 WL 730615 (6th Cir. Feb. 13, 2020), available at the Sixth Circuit and Westlaw.

The Third Circuit dismissed an attorney’s appeal because the notice of appeal did not name the attorney

In Sanchez-Garcia v. United States, the Third Circuit held that a notice of appeal that named only the plaintiff—and not the plaintiff’s attorney—deprived the court of jurisdiction over the attorney’s appeal.

The parties in Sanchez-Garcia had settled a tort claim against the United States. But some disputes about the settlement arose that affected only the plaintiff’s attorney (the opinion doesn’t give many details about what those disputes were). The district court ruled against the attorney on these issues, and the plaintiff appealed. But the notice of appeal named only the plaintiff, not the plaintiff’s attorney.

The Third Circuit held that it lacked jurisdiction over the appeal. The plaintiff did not have appellate standing to seek review of issues that affected only her attorney. The attorney was the real party in interest. But the attorney was not named in the notice. Federal Rule of Appellate Procedure 3(c) requires that a notice “specify the party or parties taking the appeal by naming each one in the caption or body of the notice.” Failure to do so, the Third Circuit concluded, was a jurisdictional defect. The court accordingly dismissed the appeal.

Sanchez-Garcia v. United States, 2020 WL 639203 (3d Cir. Feb. 11, 2020), available at the Third Circuit and Westlaw.

The Tenth Circuit and unspecified fact issues in qualified-immunity appeals

In Chapman v. Santini, the Tenth Circuit affirmed the denial of qualified immunity to prison medical professionals accused of acting with deliberate indifference to a prisoner’s serious medical needs.

In the course of doing so, the court had to review the summary-judgment record for itself to determine what material facts were genuinely disputed. In an interlocutory qualified-immunity appeal from the denial of summary judgment, the court of appeals normally must take the facts as the district court found them. That is, the court of appeals takes as true the same facts that the district court assumed to be true in denying qualified immunity, and the appellate court cannot review the summary-judgment record for itself to see if the record supports those assumed facts. But an exception exists when the district court does not specify the facts it assumed in denying qualified immunity. In such a case, the court of appeals must itself review the record to determine the material fact disputes.

The general rule prohibiting the courts of appeals from reviewing the summary-judgment record in qualified-immunity appeals saves time and focuses those appeals on the qualified-immunity questions. Rather than occasionally allow these dives into the record, it might be better to require district courts to specify the facts they assume in denying qualified immunity—much like the Third Circuit does—and remand appeals when they don’t.

Chapman v. Santini, 2020 WL 729530 (10th Cir. Feb. 13, 2020), available at the Tenth Circuit and Westlaw.

New cert petition mentions overruling Mitchell v. Forysth

A new cert petition—Cooper v. Flaig—asks the Supreme Court to eliminate or significantly revise qualified immunity. Several cert petitions have been filed in the past few years urging the Court to do so. One thing I noticed about Cooper, though, is its suggestion that the Court “overrule or modify Mitchell v. Forsyth to the extent it authorizes interlocutory appeals of police officers in excessive force cases.”

The response is due March 11, 2020.

Petition for Writ of Certiorari, Cooper v. Flaig, No. 19-1001 (Feb. 5, 2020), available at the Supreme Court and Westlaw.