Appealing the other orders in cases of cumulative finality, jurisdiction over the termination of removal proceedings, appealing whether arbitration is “subject to” the FAA, and a bunch of issues in qualified-immunity appeals.
July 26, 2022
It was another packed week of appellate-jurisdiction decisions, particularly in the Sixth Circuit. Let’s start with one of my favorite topics, cumulative finality.
- The Fourth Circuit on Appealing the Order that Saves a Premature Notice of Appeal
- The Ninth Circuit Lacked Jurisdiction to Review the Termination of Removal Proceedings
- The Sixth Circuit Dismissed an Injunction Appeal in the Arbitration Context
- The Sixth Circuit Reviewed the Effective Denial of Qualified Immunity
- The Sixth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal
- The Sixth Circuit Dismissed a Plaintiff’s Cross-Appeal in a Qualified-Immunity Appeal
- The Tenth Circuit Rejected a Blatant-Contradiction Argument in a Qualified-Immunity Appeal
The Fourth Circuit on Appealing the Order that Saves a Premature Notice of Appeal
In Houck v. LifeStore Bank, the Fourth Circuit held that litigants must file a timely appeal from an order that saves a premature notice of appeal to obtain review of that order, even if the court of appeals reverses or vacates the appealed order.
Houck’s procedural history is complicated. Simplifying a bit, the plaintiff sued three defendants. The district court dismissed her claims against one of those defendants, after which the plaintiff filed a notice of appeal. That notice was premature; the district court had not yet resolved the claims against the other two defendants. But before the Fourth Circuit could dismiss this appeal as premature, the district court dismissed the claims against the remaining two defendants.
That subsequent dismissal saved the premature notice of appeal under the doctrine of cumulative finality. So the Fourth Circuit reviewed—and vacated—the order dismissing the first defendant. On remand, the plaintiff obtained a judgment against that defendant. She then tried to appeal from the order dismissing her claims against the other two defendants.
The Fourth Circuit dismissed this second appeal as untimely. The dismissal of claims against the other two defendants was a final decision, and the plaintiff thus had 30 days to file her notice of appeal. Her appeal—filed about seven years later—was thus late.
The first appeal did not change matters. Granted, in that appeal the Fourth Circuit had vacated “[t]he judgment of the district court,” which would seem to encompass the dismissal of claims against all three defendants. But at that time, the plaintiff had not appealed from the dismissal of the other two defendants. And application of the cumulative-finality doctrine did not expand the scope of the appeal to that dismissal. So the Fourth Circuit could not have vacated the judgment against them.
Houck v. LifeStore Bank, 2022 WL 2813066 (4th Cir. July 19, 2022), available at the Fourth Circuit and Westlaw
The Ninth Circuit Lacked Jurisdiction to Review the Termination of Removal Proceedings
In Lopez v. Garland, the Ninth Circuit held that it lacked jurisdiction to review the termination of removal proceedings in a appeal from a reinstated order of removal.
The petitioner in Lopez first entered the United States in 1996 and was soon thereafter ordered removed (read: deported). Several years later, after the petitioner reentered the United States, the Department of Homeland Security initiated new removal proceedings. But DHS later moved to dismiss these new proceedings, concluding that it could simply reinstate the prior removal order. (DHS probably wanted to do so because there are fewer avenues for relief from a reinstated removal order, such as cancellation of removal.) An immigration judge denied DHS’s request and ultimately granted the petitioner cancellation of removal. But the Board of Immigration Appeals reversed and granted DHS’s motion to dismiss. DHS subsequently reinstated the prior removal order, and immigration authorities ordered the petitioner deported. The petitioner then appealed, challenging the Board’s decision to terminate the second removal proceedings at DHS’s request.
The Ninth Circuit held that it could not review the termination of the second removal proceedings. The scope of appellate review for a reinstated removal order is narrow. The petitioner’s argument in Lopez—that the Board of Immigration Appeals should not have dismissed the second removal proceedings—was not among the issues available for review. That dismissal also did not result in a final order of removal that the Ninth Circuit could review. And the dismissed removal proceedings were separate from the reinstatement proceedings, such that the limited jurisdiction to review reinstatement proceedings did not encompass the dismissed removal proceedings.
Lopez v. Garland, 2022 WL 2813735 (9th Cir. July 19, 2022), available at the Ninth Circuit and Westlaw
The Sixth Circuit Dismissed an Injunction Appeal in the Arbitration Context
In Valentine v. Health & Wellness Lifestyle Clubs, LLC, the Sixth Circuit dismissed an appeal from the denial of a preliminary injunction against arbitration.
The defendant in Valentine filed a claim against the plaintiff with the Financial Industry Regulatory Authority (commonly called “FINRA”). The plaintiff then sued the defendant in federal court, seeking a declaratory judgment that the claim was not subject to FINRA arbitration and preliminary and permanent injunctions against arbitration. The district court denied the request for a preliminary injunction. The plaintiff then appealed.
The Sixth Circuit dismissed the appeal. 9 U.S.C. § 16(b) bars appeals from (among other things) interlocutory orders “refusing to enjoin an arbitration that is subject to” the Federal Arbitration Act. And the denial of a preliminary injunction was an interlocutory order—it did not resolve the plaintiff’s requests for a declaratory judgment or a permanent injunction.
The Sixth Circuit also rejected the argument that § 16(b) did not apply because the arbitration was not “subject to” the FAA. That argument went to the merits. To accept that argument “would mean that any time a party argues that it did not agree to arbitrate, that arbitration is not covered by the FAA.” In other words, accepting that agreement would nullify § 16(b)’s prohibition on appeals from interlocutory orders “refusing to enjoin an arbitration that is subject to” the FAA.
Valentine v. Health & Wellness Lifestyle Clubs, LLC, 2022 WL 2903444 (6th Cir. July 22, 2022), available at the Sixth Circuit and Westlaw
The Sixth Circuit Reviewed the Effective Denial of Qualified Immunity
In Myers v. City of Centerville, Ohio, the Sixth Circuit reviewed the effective denial of qualified immunity, as the district court had deferred ruling on the immunity request.
Myers involved First Amendment-retaliation claims. When the defendants sought qualified immunity, the district court denied that request in a three-page order that deferred ruling on all issues until summary judgment. The defendants then appealed.
The Sixth Circuit held that it had jurisdiction. Granted, the district court had not conclusively determined the immunity issue. Buy by “punting” on the qualified-immunity request, the district court had effectively denied it. After all, qualified immunity is a protection from the burdens of litigation, such as discovery. And the district court’s order “unlocked discovery without answering the threshold immunity question.” (Quotation marks omitted.)
Myers v. City of Centerville, Ohio, 2022 WL 2865994 (6th Cir. July 21, 2022), available at the Sixth Circuit and Westlaw
The Sixth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal
In King v. City of Columbus, Ohio, the Sixth Circuit dismissed a qualified-immunity appeals in which the defendant challenged the factual basis for the district court’s immunity denial.
King involved excessive-force claims stemming from a fatal police shooting. The parties disputed what the decedent was doing before the defendant police officer shot him. According to the district court, a reasonable jury could find that the decedent did not have, and never reached for, a weapon. The district court accordingly denied the officer’s request for qualified immunity. The officer nevertheless appealed.
The Sixth Circuit noted that its jurisdiction in qualified-immunity appeals “depends on the nature of the defendant’s arguments on appeal.” And the defendant presented his own version of events. That was improper. By asking the court of appeals to ignore evidence favorable to the plaintiff, the defendant failed to take as given the district court’s assessment of the record. The Sixth Circuit accordingly lacked jurisdiction to review the denial of qualified immunity.
King v. City of Columbus, Ohio, 2022 WL 2812888 (6th Cir. July 19, 2022), available at the Sixth Circuit and Westlaw
The Sixth Circuit Dismissed a Plaintiff’s Cross-Appeal in a Qualified-Immunity Appeal
In Sevenski v. Artfitch, the Sixth Circuit dismissed a plaintiff’s cross-appeal in a qualified-immunity appeal. The district court denied qualified immunity, and the defendant appealed. The plaintiff then tried to cross-appeal from the denial of a default judgment. The Sixth Circuit explained that a qualified-immunity appeal does not permit review of all other orders in a case. And pendent appellate jurisdiction was inappropriate, as the basis for the requested default judgment (alleged spoliation of evidence) was not at all intertwined with the immunity denial.
Sevenski v. Artfitch, 2022 WL 2826818 (6th Cir. July 20, 2022), available at the Sixth Circuit and Westlaw
The Tenth Circuit Rejected a Blatant-Contradiction Argument in a Qualified-Immunity Appeal
In McWilliams v. Dinapoli, the Tenth Circuit rejected a defendant’s invocation of the blatant-contradiction exception to the general scope of qualified-immunity appeals. The court thus looked only to the facts that the district court relied on in denying qualified immunity.
McWilliams v. Dinapoli, 2022 WL 2812717 (10th Cir. July 19, 2022), available at the Tenth Circuit and Westlaw