The Week in Federal Appellate Jurisdiction: July 19–25, 2020

Relatively brief roundup this week. A split Ninth Circuit held that it lacked jurisdiction to review an order directing class-wide arbitration when the defendant wanted individual arbitration. The Third Circuit applied the blatant-contradiction exception to review the genuineness of fact disputes in a qualified-immunity appeal. And the Seventh Circuit required an amended notice of appeal to challenge a post-judgment order refusing to unseal records. Plus more arbitration and qualified-immunity appeals and disclaiming the right to refile voluntarily dismissed claims.

• The Ninth Circuit Divided Over Its Jurisdiction to Review Orders Directing Class-Wide (Rather than Individual) Arbitration
• The Third Circuit Applied the Blatant-Contradiction Exception to Qualified-Immunity Appeals
• The Seventh Circuit on the Need for Second/Amended Notices of Appeal Designating Post-Judgment Decisions
• Quick Notes

The Ninth Circuit Divided Over Its Jurisdiction to Review Orders Directing Class-Wide (Rather than Individual) Arbitration

In Hermosillo v. Davey Tree Surgery Co., a divided Ninth Circuit held that it lacked jurisdiction to review a decision ordering class-wide arbitration over a request for individual arbitration. Under the Federal Arbitration Act, district court decisions denying arbitration are immediately appealable. But decisions ordering arbitration generally aren’t. Hermasillo addressed jurisdiction when a district court orders arbitration on terms other than those requested by the party seeking arbitration. Courts have generally held that these sorts of “mixed” orders directing arbitration are not appealable; arbitration is not effectively denied just because a party did not get exactly what it wanted. But the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela created new grounds to argue that arbitration is effectively denied when the district court orders class-wide (rather than individual) arbitration. Hermasillo rejected this argument, albeit in an unpublished opinion. We’ll likely see more cases raising this issue soon.

For more on Hermosillo and appealing purportedly effective denials of arbitration, see my post Appeals After Ordering (Class-Wide) and Rejecting (Individual) Arbitration.

Hermosillo v. Davey Tree Surgery Co., 2020 WL 4253215 (9th Cir. July 24, 2020), available at the Ninth Circuit and Westlaw.

The Third Circuit Applied the Blatant-Contradiction Exception to Qualified-Immunity Appeals

In Williams v. City of York, the Third Circuit held that it could review the genuineness of fact disputes as part of a qualified-immunity appeal because the summary-judgment record blatantly contradicted the plaintiff’s version of the facts.

The events in Williams began with police officers pursuing the suspects in a shooting after those suspects had crashed their car and fled on foot. An officer wrongly identified the plaintiff in Williams and her boyfriend as the suspects and stopped them. The plaintiff alleged that the officers threw her to the ground. And when they arrested her and brought her to city hall, an officer “twisted her arm, threw her against the wall, and threatened if she did not give him her arm, he would break it.” The plaintiff later sued the officers for false arrest and excessive force. The district court denied the officers’ request for qualified immunity, and they appealed.

The Third Circuit began by emphasizing the need for district courts to specify the fact disputes that preclude immunity. The Third Circuit created this supervisory rule in Forbes v. Township of Lower Merion, which keeps the court within its limited jurisdiction in interlocutory qualified-immunity appeals. The district court in Williams had not specified what fact issues precluded immunity on the plaintiff’s false-arrest claim. The Third Circuit took the opportunity to again remind district courts to follow Forbes.

The Third Circuit went on to hold that the summary-judgment record blatantly contradicted the plaintiff’s allegations on her excessive-force claim. The plaintiff did not identify which officer used force against her after she was brought to city hall, and the district court did not specifically analyze her excessive-force claim with relation to any specific officer. The district court instead concluded that genuine disputes of material fact existed as to whether several officers used and threatened force against the plaintiff.

According to the Third Circuit, this “flaw in the District Court’s decisionmaking process” resulted in the district court’s decision being blatantly contradicted by the summary-judgment record. The plaintiff conceded that she could not identify which specific officer used force against her. And her deposition testimony “preclude[d] the possibility that any of the [defendants were] the unidentified officer who allegedly twisted her arm and threw her against a wall.” The Third Circuit parsed the deposition transcript to rule out each of the defendants as the one who used force against the plaintiff. The court then concluded that “no reasonable juror could find the [defendants] failed to loosen [the plaintiff]’s handcuffs or twisted her arm, threw her against the wall, and threatened to break her arm.” The district court accordingly erred in denying qualified immunity.

The Third Circuit’s detailed review of the record in Williams illustrates why the blatant-contradiction exception is so troublesome. In what was partially an effort to speed along the resolution of qualified-immunity appeals, the Supreme Court held in Johnson v. Jones that courts of appeals hearing a qualified-immunity appeal generally cannot review whether factual disputes are genuine. When a defendant invokes the blatant-contradiction exception to Johnson, the court of appeals must conduct the very inquiry that Johnson prohibited to see if that exception applies. In other words, the court of appeals must review the summary-judgment record to see if it has jurisdiction to review the summary-judgment record. Given the rarity of blatant contradictions—and the questionable premise that appellate courts can reliably identify them—the blatant-contradiction exception is both unpragmatic and unnecessary.

Williams v. City of York, 2020 WL 4249437 (3d Cir. July 24, 2020), available at the Third Circuit and Westlaw.

The Seventh Circuit on the Need for Second/Amended Notices of Appeal Designating Post-Judgment Decisions

In United States v. Bonk, the Seventh Circuit held that it lacked jurisdiction to review an appellate attorney’s request that the district court unseal records because that order was not in the notice of appeal.

Simplifying a bit, the defendant in Bonk had pleaded guilty to a federal drug charge and was sentenced to over 20 years’ imprisonment. The defendant then filed a notice of appeal, and the Seventh Circuit appointed appellate counsel. Counsel soon sought access to sealed records relating to the defendant’s sentencing as well as records for co-defendants. The district court denied the motion in part due to the confidentiality of some of the sealed records.

The Seventh Circuit held that it lacked jurisdiction to review the denial of access to sealed records. A notice of appeal must designate the order or judgment that a party seeks to appeal. The defendant in Bonk had filed a notice of appeal after being sentenced. So jurisdiction was secure over that part of the appeal. But no new (or amended) notice was filed after the district court subsequently denied appellate counsel’s request for access to records. So that decision was never designated in a notice. And the court refused to infer an intent to appeal the unsealing decision because it came after notice of appeal was filed. A second (or amended) notice of appeal was required. None was filed, so the court of appeals lacked jurisdiction to review the unsealing decision.

I’m not too sure about this aspect of the decision. To be sure, some of the rules governing notices of appeal—such as the time for filing in a civil case—are jurisdictional. Notices of appeal are also (as courts often say) “jurisdictionally significant.” They transfer jurisdiction over a case from the district court to the court of appeals. And amending a notice of appeal to designate the post-judgment order is not too difficult.

But litigants don’t always amend their notices. And their failure to do should not be jurisdictionally significant, as the rules governing the contents (as opposed to the timing) of a notice of appeal should not be jurisdictional. The requirement that appellants amend a notice to designate post-judgment decisions often seems unnecessary to me. Who is ever surprised (much less harmed) when an appellant seeks review of both the final judgment designated in the notice of appeal and some post-judgment order entered after the notice was filed?

United States v. Bonk, 2020 WL 4250023 (July 24, 2020), available at the Seventh Circuit and Westlaw.

Quick Notes

In Jin v. Parsons Corp., the D.C. Circuit held that it could review a decision denying arbitration due to genuine fact issues concerning arbitrability. Section 4 of the Federal Arbitration Act requires that district courts speedily address arbitrability, via a trial if necessary. The district court in Jin refused to compel arbitration due to genuine fact disputes but, rather than resolving arbitrability, “signaled the beginning of the merits litigation.” Because the district court “open[ed] the door for the case to proceed to the merits,” the denial of arbitration was immediately appealable. The situation might be different, the D.C. Circuit noted, if the district court had indicated its intent to resolve arbitrability before proceedings to the merits.

Jin v. Parsons Corp., 2020 WL 4248732 (D.C. Cir. July 24, 2020), available at the D.C. Circuit and Westlaw.

In Hanson v. Levan, the Seventh Circuit held that it could address whether political affiliation was a valid requirement for a particular job as part of a qualified-immunity appeal. The plaintiffs in Hanson were fired from their jobs in a municipal assessor’s office, allegedly due to their supporting the new assessor’s political opponent. They claimed that their firings violated the First Amendment. In the assessor’s appeal from the denial of qualified immunity, the Seventh Circuit explained that it could review whether political affiliation was an appropriate job criterion for the plaintiffs’ former position. Granted, the Seventh Circuit had previously treated that issue as one of fact, and fact issues are generally outside the scope of an interlocutory qualified-immunity appeal. But so long as the position’s responsibilities were taken as given, the question was really one of applying law to fact. And that sort of issue was appropriate for interlocutory review.

Hanson v. Levan, 2020 WL 4188044 (7th Cir. July 21, 2020), available at the Seventh Circuit and Westlaw.

In Williams v. Dart, the Seventh Circuit held that plaintiffs’ disclaiming any right to refile voluntarily dismissed claims cured any finality issues. After the district court dismissed most of their claims, the plaintiffs in Williams stipulated to dismiss their one remaining claim. These sorts of dismissals can cause problems if plaintiffs intend to refile the voluntarily dismissed claims after the appeal. But the plaintiffs in Williams “twice confirmed, once in their opening brief and again at argument, that the stipulated dismissal of the procedural due process claim was indeed with prejudice to refiling.” The plaintiffs’ assurances assuaged any concern that they would (or could) refile. The court was accordingly convinced that the plaintiffs were “not attempting an unauthorized interlocutory appeal.”

Williams v. Dart, 2020 WL 4217764 (7th Cir. July 23, 2020), available at the Seventh Circuit and Westlaw.

And in Siders v. City of Eastpointe, the Sixth Circuit split over the facts to take as true for purposes of a qualified-immunity appeal. The plaintiff in Siders was arrested for domestic violence, and she sued the officers who arrested her for excessive force, failure to intervene, and deliberate indifference to a serious medical need. Relying largely on a video of the events, the majority appears to have made its own assessment of the evidence, ultimately reversing the denial of qualified immunity on these claims. I found one passage particularly illustrative:

[W]hile in the cruiser, [the plaintiff] brought her cuffed hands over her head to the front, and then fixed her hair while looking in the car mirror. She was also repeatedly fixing her hair while waiting at the police station. This focus on primping her hair, and her apparent unawareness of or disinterest in any physical injury while at the station, undermines her claims of serious injury and effectively refutes any claim that the officers had reason to recognize that she had a serious medical need, a substantial risk of harm arising from it, or a need to act on it.

Dissenting, Judge Stranch contended that the majority had failed to view the facts in the light most favorable to the plaintiff.

Siders v. City of Eastpointe, 2020 WL 4250984 (6th Cir. July 24, 2020), available at the Sixth Circuit and Westlaw.