The Week in Federal Appellate Jurisdiction: January 10–16, 2021

Last week saw two decisions of note. The Ninth Circuit dismissed a fact-based qualified-immunity appeal, with Judge Fletcher dissenting to argue for the overruling of Johnson v. Jones. And the Third Circuit dismissed an appeal from the denial of a motion to dismiss the original and superseding indictments, even though a victim of the crime served on the grand jury that returned the original indictment.

• Judge Fletcher on Qualified-Immunity Appeals & Johnson v. Jones
• The Third Circuit Dismissed a Challenge to an Indictment

Judge Fletcher on Qualified-Immunity Appeals & Johnson v. Jones

In Estate of Anderson v. Marsh, the Ninth Circuit dismissed a fact-based qualified-immunity appeal. Judge Fletcher dissented and—expanding on an opinion he wrote about a year ago—tried to reconcile the Supreme Court’s caselaw governing appeals from the denial of qualified immunity. He read Johnson v. Jones to make appellate jurisdiction turn on what the defendant argues in the district court—a defendant can immediately appeal from the denial of immunity only if the defendant does not dispute the facts. So construed, Johnson is an odd decision that conflicts with much of other caselaw in this area. Judge Fletcher ended his dissent by again asking the Supreme Court to overrule Johnson.

I read Johnson differently. Appellate jurisdiction turns on what the defendant argues in the appeal, not the district court. When seeking qualified immunity in the district court, defendants are free to argue about what facts a reasonable factfinder could find. But with rare and narrow exceptions, Johnson prohibits any challenges on appeal to the district court’s determination of what facts a reasonable factfinder could find. The defendant—and the court of appeals—must instead take the factual basis for the district court’s immunity denial as given and address whether those facts make out a clearly established violation of federal law. And Johnson is a good rule; it shouldn’t be overruled.

For more on Anderson and the various readings of Johnson, see my post Judge Fletcher: “Johnson Strikes Again”.

Estate of Anderson v. Marsh, 2021 WL 139733 (9th Cir. Jan. 15, 2021), available at the Ninth Circuit and Westlaw.

The Third Circuit Dismissed a Challenge to an Indictment

In United States v. Alexander, the Third Circuit held that it lacked jurisdiction over an appeal from an order refusing to dismiss an indictment.

A Victim on the Grand Jury

Simplifying a bit, Alexander involved an alleged identify-theft and tax-fraud scheme. A grand jury returned an initial indictment against the defendants. But it turned out that one of the grand jurors was a victim of this alleged scheme:

This juror’s full name was listed in the original indictment as a victim . . . and was also contained in an exhibit presented by the Government during the grand jury proceedings. Moreover, an IRS agent investigating the scheme had interviewed the alleged victim approximately eight months before the grand jury was convened. Nevertheless, when the Government identified [the defendants] at the outset of the grand jury proceedings and asked whether the jurors knew any of the defendants, there were no positive responses. The alleged victim went on to participate in the original grand jury’s deliberations and voted along with the other 18 jurors to return a true bill.

The government eventually learned of the victim’s participation and, about a month before trial was scheduled to begin, obtained a superseding indictment from a new grand jury. This superseding indictment made only minor changes to the original.

Upon learning of the issues with the original grand jury, one of the defendants in Alexander moved to dismiss the indictment. She argued that the original indictment violated the Fifth Amendment’s Grand Jury Clause and Federal Rule of Criminal Procedure 6(d). The district court refused to dismiss the indictment. The defendant then appealed.

An Unappealable Decision

The Third Circuit held that it lacked jurisdiction over the appeal. The district court’s decision was not a traditional final one; the underlying criminal case was still pending. Nor was it appealable via the collateral-order doctrine. That doctrine allows for immediate appeals from decisions that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. None of the defendant’s grounds for challenging the indictment satisfied all three of these requirements.

The Rule 6(d) Argument: Not Separate From the Merits

The Rule 6(d) challenge was not separate from the merits. Rule 6(d) specifies who can be present while the grand jury is in session and deliberates. And the Supreme Court has held that a guilty verdict renders any violation of Rule 6(d) harmless. Rule 6(d), the Court explained, “protects against the danger that a defendant will be required to defend against a charge for which there is no probable cause.” A guilty verdict shows not only that probable cause existed, but also that the defendant is guilty beyond a reasonable doubt. “Because the trial outcome showed that there was probable cause to believe the defendants were guilty, any error in the grand jury’s charging decision was harmless.”

So a Rule 6(d) violation is probably not effectively reviewable after trial. But the Rule 6(d) issue is not separate from the merits. The Supreme Court held in Midland Asphalt Corp. v. United States that the collateral-order doctrine did not apply to an order refusing to dismiss an indictment for violations of Rule 6(e). Midland Asphalt noted that a subsequent guilty verdict moots any violations of Rule 6(e) (which governs, among other things, grand jury secrecy) for the same reason that a guilty verdict moots any violations of Rule 6(d); the rule exist to protect defendants from being charged without probable cause. But Midland Asphalt also said that an issue is not separate from the merits if it involves “considerations enmeshed in the merits of the dispute and would thus affect or be affected by the decision on the merits of the case.” (Cleaned up.) And if a subsequent guilty verdict can moot a Rule 6 violation, then the Rule 6 violation is “enmeshed in the merits.”

The Grand Jury Clause Argument: Not Effectively Unreviewable

As for the Grand Jury Clause argument, the Third Circuit noted that the clause provides “a right not to be tried when there is no grand jury indictment.” (Cleaned up.) An order that denies a right to avoid trial is often effectively unreviewable in an appeal after a final judgment. But only certain errors implicate this right under the Grand Jury Clause. The error must be “so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment.” And the Third Circuit has limited these circumstances to “technical challenges to the existence of an indictment, such as where the defendant may have been indicted by an insufficient number of grand jurors.” (Cleaned up.)

The defendant in Alexander’s challenge was a substantive one that implicated the merits of the case. It did not challenge the indictment’s technical validity. So the challenge did not implicate a right to avoid trial and thus failed to satisfy the third collateral-order requirement.

Neither of the defendant’s challenges satisfied all three requirements of the collateral-order doctrine. The Third Circuit accordingly dismissed the appeal.

United States v. Alexander, 2021 WL 137893 (3d Cir. Jan. 15, 2021), available at the Third Circuit and Westlaw.