The Week in Federal Appellate Jurisdiction: January 30–February 5, 2022

Last week, the Ninth Circuit addressed whether a letter from the Drug Enforcement Agency amounted to an appealable “final decision of the Attorney General.” The Federal Circuit held that it could review an order enforcing a settlement agreement. And several courts had to deal with improper fact-based qualified-immunity appeals. Plus appeals involving refusals to reconsider decisions ordering arbitration and the scope of state-law immunity appeals.

• The Ninth Circuit on Final Agency Actions
• The Federal Circuit on Appealing Settlement-Enforcement Orders
• The Week in Fact-Based Qualified-Immunity Appeals
• Quick Notes

The Ninth Circuit on Final Agency Actions

In Advanced Integrative Medical Science Institute, PLLC v. Garland, the Ninth Circuit concluded that a letter from the Drug Enforcement Agency did not amount to an appealable “final decision of the Attorney General.”

A physician asked the DEA whether the Right to Try Act created any exceptions to the Controlled Substances Act for the administration of psilocybin to terminally ill patients. The DEA responded that the Right to Try Act did not create any such exceptions. The physician then sought review of that letter in the Ninth Circuit.

The Ninth Circuit determined that it lacked jurisdiction. The courts of appeals have jurisdiction to review “a final decision of the Attorney General.” Applying the definition of “final” from the context of the Administrative Procedures Act, the court held that the letter was merely an informational letter setting out the DEA’s interpretation of a statute. The letter did not mark the conclusion of the DEA’s decisionmaking process. And the letter had no direct legal consequences for the physician. It instead provided guidance on the interaction between the Right to Try Act and the Controlled Substances Act.

Advanced Integrative Medical Science Institute, PLLC v. Garland, 2022 WL 276030 (9th Cir. Jan. 31, 2022), available at the Ninth Circuit and Westlaw.

The Federal Circuit on Appealing Settlement-Enforcement Orders

In PlasmaCAM, Inc. v. CNCElectronics, LLC, the Federal Circuit held that an order requiring execution of a settlement agreement was either an appealable injunction or a final decision.

The parties in PlasmaCAM notified the district court that the had settled their suit. But when trying to put that settlement to paper, the parties disagreed about what they had agreed to. They eventually turned to the district court, which sided wit the plaintiff. The district court accordingly ordered the defendant to execute the agreement on the plaintiff’s terms. The defendant then appealed.

The Federal Circuit saw two alternative grounds for appellate jurisdiction. First, the district court’s decision was an appealable injunction under 28 U.S.C. § 1292(a)(1). “[A]n order granting specific performance on nonmonetary terms is appealable as an injunction.” So the order mandating specific performance of the settlement was an appealable injunction. Alternatively, the order was a final decision under 28 U.S.C. § 1291. After ordering performance on the settlement agreement, there was nothing more for the district court to do. The district court was thus done with the case, and its decision was final and appealable.

PlasmaCAM, Inc. v. CNCElectronics, LLC, 2022 WL 320676 (Fed. Cir. Feb. 3, 2022), available at the Federal Circuit and Westlaw.

The Week in Fact-Based Qualified-Immunity Appeals

Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited when the district court denies immunity at summary judgment. 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 normally 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.

Last week saw a few examples of these improper qualified-immunity appeals.

Lippett v. Corizon Health, Inc.

Lippett v. Corizon Health, Inc. involved Eighth Amendment claims against a prison nurse. According to the district court, a genuine fact dispute existed as to whether the nurse denied the plaintiff medical treatment while knowing of his severe medical needs. And if the nurse had done so, she violated clearly established law. The district court accordingly denied qualified immunity.

The nurse appealed. And in that appeal, she argued that the district court had considered inadmissible evidence in denying qualified immunity.

The Sixth Circuit dismissed the appeal. The nurse’s was arguing that the plaintiff could not prove the facts that the district court had relied on in denying immunity. The argument thus concerned evidence sufficiency—whether the fact dispute was genuine. So the Sixth Circuit lacked jurisdiction over the appeal.

Lippett v. Corizon Health, Inc., 2022 WL 304955 (6th Cir. Feb. 2, 2022), available at the Sixth Circuit and Westlaw.

Bridges v. Morgan

Bridges v. Morgan involved excessive-force claims against two police officers. The district court denied immunity after concluding that a witness statement was admissible hearsay. The officers appealed. But in that appeal, they argued that the witness statement was inadmissible. Just like in Lippett, the officers’ argument concerned evidence sufficiency. The Eleventh Circuit thus lacked jurisdiction over the appeal.

Bridges v. Morgan, 2022 WL 342905 (11th Cir. Feb. 4, 2022), available at the Eleventh Circuit and Westlaw.

Scism v. Ferris

Scism v. Ferris involved an excessive-force claim related to a fatal police shooting. The district court denied immunity, concluding that genuine fact disputes existed as to (among other things) whether the decedent was holding a gun and ignored police commands. The officer nevertheless appealed from the immunity denial. And in that appeal, he argued that the decedent “‘brandished a loaded handgun’ and ‘ignored police commands.’” The Second Circuit easily concluded that disputed fact issues precluded summary judgment on qualified immunity.

Scism v. Ferris, 2022 WL 289314 (2d Cir. Feb. 1, 2022), available at CourtListener and Westlaw.

Minifield v. Sills

Minifield v. Sills involved excessive-force claims arising out of a fatal police chase. The opinion has few details. But the district court determined that fact issues about the circumstances of the decedent’s death precluded qualified immunity. The defendant appealed. But the defendant’s “arguments on appeal hinge[d] on a view of the facts contrary to that reached by the district court in evaluating her summary judgment motion.” The Fourth Circuit accordingly dismissed the appeal.

Minifield v. Sills, 2022 WL 327001 (4th Cir. Feb. 3, 2022), available at the Fourth Circuit and Westlaw.

Quick Notes

In Doe v. Tonti Management Co., the Fifth Circuit held that the denial of a motion to reconsider a decision ordering arbitration is not appealable. Under 9 U.S.C. § 16(b), a decision ordering arbitration is not immediately appealable. The Doe court concluded that this prohibition applied equally to orders refusing to reconsider a decision ordering arbitration.

Doe v. Tonti Management Co., 2022 WL 293222 (5th Cir., Feb. 1, 2022), available at the Fifth Circuit and Westlaw.

In Ingram v. Regano, the Sixth Circuit limited a state-law immunity appeal to immunity questions and refused to consider the sufficiency of the pleadings. Ingram involved a civil-conspiracy claim against against two school officials. The plaintiff alleged that the defendants conspired to retaliate against her for filing sexual-harassment grievances. The district court denied immunity under state law, and the defendants appealed. The Sixth Circuit noted that it had jurisdiction under the collateral-order doctrine to review the denial of this state-law immunity. But that jurisdiction did not extend to whether the plaintiff had sufficiently pleaded the retaliation. That issue was not “inextricably intertwined” with the immunity denial. So it was not before the court.

Ingram v. Regano, 2022 WL 320216 (6th Cir. Feb. 3, 2022), available at the Sixth Circuit and Westlaw.