The weekly roundup of decisions and other developments in federal appellate jurisdiction.
July 29, 2019
Last week saw several qualified-immunity appeals, as well as decisions on reviewing credibility findings, orders committing criminal defendants, leave to proceed anonymously, and discovery.
Let’s start with all of the qualified immunity.
Sixth Circuit Addresses Collateral Estoppel in a Qualified-Immunity Appeal, Lets Municipality Piggyback on Individual Appeals
In Peterson v. Heymes, the Sixth Circuit held that a § 1983 plaintiff was not collaterally estopped from litigating the voluntariness of his confession after his conviction was vacated. It also allowed a municipality to appeal alongside individual defendants’ interlocutory qualified-immunity appeals via pendent appellate jurisdiction.
The decision raises some interesting issues about the scope of interlocutory qualified-immunity appeals, both in terms of what issues can be addressed in an individual defendant’s appeal and the exercise of pendent appellate jurisdiction over municipalities. I wrote about this decision and the these issues last week..
Peterson v. Heymes, 2019 WL 3330456 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
Eighth Circuit on Blatant Contradictions & Pendent Appellate Jurisdiction in Qualified-Immunity Appeals
Two Eighth Circuit decisions from last week involved Scott v. Harris’s blatant-contradiction exception to Johnson v. Jones.
Thompson v. Dill
In Thompson v. Dill, the Eighth Circuit held that it lacked jurisdiction to review an interlocutory appeal from the denial of qualified immunity. In so doing, the court declined to apply the blatant-contradiction exception.
The plaintiffs in Thompson had sued a police officer for the fatal shooting of the decedent. When the officer moved for summary judgment on qualified-immunity grounds, the district court concluded that genuine issues of fact existed that precluded immunity. Specifically, there was evidence going both ways on whether the decedent had reached for his waist or otherwise acted in a threatening way. The officer nevertheless appealed the denial of qualified immunity. And in doing so, the officer argued that he had reason to believe that the decedent was a threat, based in part on the fact that the decedent had reached for his waist.
The Eighth Circuit held that it lacked jurisdiction over the officer’s appeal. Although defendants can generally immediately appeal the denial of qualified immunity, appellate jurisdiction generally extends only to whether the facts assumed by the district court make out a clear violation of constitutional law. Courts of appeals generally lack jurisdiction in these interlocutory appeals to review the district court’s conclusion that the record presents a genuine issue of fact.
Further, the main exception to that general limit on appellate jurisdiction—the blatant-contradiction exception, which allows the appellate court to review the genuineness of fact disputes when the summary-judgment record blatantly contradicts the district court’s assumed facts—didn’t apply. The officer could not show that the record plainly foreclosed the district court’s finding that a genuine fact dispute existed.
In short, the evidence was not so one-sided as to upset the usual limits on jurisdiction in interlocutory qualified-immunity appeals. The court accordingly dismissed the appeal.
Z.J. v. Kansas City Board of Police Commissioners
Contrast that with Z.J. v. Kansas City Board of Police Commissioners, in which the Eighth Circuit affirmed the denial of qualified immunity for several SWAT team officers but reversed as to detectives.
The case involved a SWAT team’s use of a flash-bang grenade without warning or any reason to do so. After police had a suspect in custody, they sent a SWAT team to search a house for additional evidence. When the team knocked on the door, a woman opened the front door and indicated that she was about to unlock the screen door. The SWAT team nevertheless broke the screen and threw a flash-bang grenade into the home. A two-year old girl who was in the house suffered PTSD from the grenade, and she sued the SWAT officers, the detectives who obtained the search warrant for the house, and the board of police commissioners. The district court denied the defendants’ motions for summary judgment, and they all appealed.
On appeal, a divided panel held that the SWAT officers were not entitled to qualified immunity. Recall that the suspect was already in custody, and there was no other reason to think use of a flash-bang was warranted. The majority thus concluded that the question was not even a close one: prior cases established that this use of force was unreasonable, and—even if they didn’t—the use of a flash-bang in these circumstances was obviously unreasonable.
But the court reversed the denial of qualified immunity as to the detectives. The plaintiff alleged that the detectives had not verified information (that the suspect had resided in the house) in their search-warrant application, and the district court found this allegation supported by the record. But on appeal, the Eighth Circuit invoked Scott’s blatant-contradiction exception to reverse on this point. According to the appellate court, the district court’s “assertion that no independent verification of [the suspect]’s residence was made [was] ‘blatantly contradicted by the record.’” So the Eighth Circuit assumed otherwise—that independent verification had occurred—and thus found no constitutional violation.
Pendent Appellate Jurisdiction in Z.J.
The Z.J. court also dismissed the board of police commissioner’s efforts to appeal via pendent appellate jurisdiction. It noted that although municipalities normally cannot appeal the denial of summary judgment on municipal liability, courts have allowed them to do so alongside individual defendants’ qualified-immunity appeals. But the Eighth Circuit could not do that here. Courts permit this only when they conclude that the individual defendants did not violate the plaintiff’s constitutional rights. In those circumstances, the municipality cannot be liable. But here the court had held that, at least under the plaintiff’s facts, the SWAT officers had violated the constitution. So the claims against the board could not be resolved solely by reference to the individual claims. Pendent appellate jurisdiction was thus inappropriate.
For more on the blatant-contradiction exception—and why courts should get rid of it—see my post “Scott v. Harris’s Unpragmatic and Unnecessary Rule of Appellate Jurisdiction”. For more on pendent appellate jurisdiction over municipal-liability claims—and, again, why courts should stop entertaining this practice—see my post “Estate of Ceballos & Pendent Appellate Jurisdiction Over Monell Claims”.
Thompson v. Dill, 2019 WL 3294010 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
Z.J. v. Kansas City Board of Police Commissioners, 2019 WL 3330459 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
Fourth Circuit Will Apparently Grant Mandamus for Anything
In In re Mt. Hawley Insurance Co., the Fourth Circuit granted a writ of mandamus to reverse a discovery order. And it did so after certifying the privilege issue on which the discovery order turned to the Supreme Court of South Carolina.
The petition came from a dispute between an insurance company and its insured. The insurance company had refused to defend and indemnify the insured in a lawsuit. The insured (along with its judgment creditor) later sued the insurance company for its refusals, alleging that the insurance company acted in bad faith. The insured eventually sought discovery of material that the insurance company claimed was protected by the attorney-client privilege. And the district court held that the insurance company had waived the privilege by placing bad faith at issue in the litigation.
The insurance company sought a writ of mandamus from the Fourth Circuit to reverse the discovery order. (The district court rejected the insurance company’s request to certify the issue for an immediate appeal under 28 U.S.C. § 1292(b).) And in seeking mandamus, the insurance company asked the Fourth Circuit to certify the privilege issue to the Supreme Court of South Carolina. Oddly enough, the insurance company had removed the case to federal court, and it was now seeking to send an issue to state court. The Fourth Circuit agreed to do so, asking the state court whether South Carolina law “support[ed] application of the ‘at issue’ exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer?”
The Supreme Court of South Carolina accepted the certified question and answered it in the negative. Back before the Fourth Circuit, the court granted the writ of mandamus and remanded for proceedings consisted with the state court’s opinion.
This is an odd series of decisions.
First is the use of mandamus in these circumstances. Mandamus is normally reserved for situations when the petitioner’s right to relief is clear and indisputable. Granted, there are other uses of mandamus—such as advisory and supervisory mandamus—that have looser requirements. And courts occasionally fudge the requirements for mandamus to essentially allow a discretionary appeal. But this is a tough case to justify the use of mandamus—the issue had to be certified to a state court, so any right to relief was far from clear and indisputable when the petition was filed. And the Fourth Circuit didn’t spend any time justifying its use of the writ.
Second, it looks like the courts might have been talking past one another. Recall the certified question:
Does South Carolina law support application of the “at issue” exception to attorney-client privilege such that a party may waive the privilege by denying liability in its answer?
The Supreme Court of South Carolina noted that the certified question might not have accurately reflected the litigation, and as presented it had only one possible answer:
The parties, especially the insured, assert the certified question does not accurately represent the correct posture of the case. In fact, the insured concedes the narrow question presented requires an answer in the negative. We agree, for we find little authority for the untenable proposition that the mere denial of liability in a pleading constitutes a waiver of the attorney-client privilege.
So it’s not clear exactly what was going on here.
Ultimately this use of mandamus is troubling. It’s not that this case was an entirely inappropriate one for an interlocutory appeal. But the method used to provide interlocutory review invites future attempts at appealing. Sure, the court can distinguish the use of mandamus in Mt. Hawley from future litigants’ attempts to use the writ, saying that this was a special case. But lots of litigants think that theirs is the special case. And the work of beating back attempts at appealing can be just as burdensome as hearing appeals on the merits. Fudging the requirements for an appeal to achieve a reasonable outcome in a particular circumstance can be more trouble than it was worth.
In re Mt. Hawley Insurance Co., 2019 WL 3335005 (4th Cir. 2019), available at the Fourth Circuit and Westlaw.
D.C. Circuit Holds that Denial of Motion to Litigate Anonymously Is Appealable Under the Collateral-Order Doctrine
In In re Sealed Case, the D.C. Circuit held that it had jurisdiction to review an interlocutory decision of the Tax Court denying a litigant’s motion to proceed anonymously. The Tax Court had refused a whistleblower’s attempt to proceed anonymously, after which the whistelblower immediately appealed.
The D.C. Circuit sided with every other circuit to address this issue and held that denial of a motion to litigate anonymously is immediately appealable under the collateral-order doctrine. The denial of anonymity (1) conclusively resolves whether the party can proceed anonymously, (2) resolves an important issue separate from the merits, and (3) cannot be effectively reviewed after a final judgment; once anonymity is lost, it cannot be corrected in a later appeal.
One additional note: as this was an appeal from the Tax Court, appellate jurisdiction came from 26 U.S.C. § 7482(a), not 28 U.S.C. § 1291. Federal courts normally treat the collateral-order doctrine as an interpretation of/exception to § 1291. But its application in the § 7482 context seems straightforward. Further, the D.C. Circuit’s decision is probably not limited to appealing anonymity decisions made in the Tax Court; the decision cited cases from other circuits that involved appeals from normal district court proceedings. So applying the holding of In re Sealed Case to appeals from a district court should be straightforward.
In re Sealed Case, 2019 WL 3367999 (D.C. Cir. 2019), available at the D.C. Circuit and Westlaw.
Fifth Circuit Holds that Order Committing an Incompetent Criminal Defendant Is Immediately Appealable Under the Collateral-Order Doctrine
In United States v. McKown, the Fifth Circuit held that an order committing a criminal defendant under 18 U.S.C. § 4241(d) is an immediately appealable collateral order.
Section 4241 deals with determining a defendant’s competency to stand trial. Subsection (d) empowers the district court to order a defendant committed to determine whether the defendant will later attain capacity to permit proceedings to commence. The defendant in McKown was charged with threatening violence against federal employees. But he was found incompetent to stand trial and ordered to four months’ commitment (the maximum time permitted by the statute). The district court also rejected the defendant’s argument that § 4241(d) violates due process. The defendant appealed the commitment order, which was stayed pending appeal.
The Fifth Circuit joined other circuits in holding that a commitment order under § 4241(d) is reviewable via the collateral-order doctrine. The commitment order conclusively determines the defendant’s right to liberty before trial. Whether the commitment order denied him due process was an important issue completely separate from his guilt for the underlying crime. And the order could not be effectively reviewed after adjudication on the merits; the pretrial commitment could never be undone after a trial, regardless of whether the defendant was convicted or acquitted.
Courts often say that the collateral-order doctrine is narrow and strict. And they actually seem to mean it in criminal cases; few interlocutory decisions made in criminal proceedings can be immediately appealed. But this one makes sense, particularly in light of Sell v. United States (which held that ordering the involuntary medication of a criminal defendant was an immediately appealable collateral order).
The court went on to hold that § 4241 satisfies due process and was therefore constitutional.
United States v. McKown, 2019 WL 3281414 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.
Third Circuit Clarifies That It Can Review Credibility Determinations On Appeal
Finally, in United States v. Anderson, the Third Circuit rejected the argument that it lacked jurisdiction to review “pure credibility findings” on appeal.
The appeal was from a district court’s refusal to suppress evidence against the defendant. The refusal was was based in part on the district court’s crediting a police officer’s testimony. After the defendant was convicted, he appealed the suppression decision. And on appeal, the United States argued that the Third Circuit lacked jurisdiction to review the district court’s “pure credibility findings.”
The Third Circuit squarely rejected the argument. The argument was based on a line of Third Circuit cases that began with Government of the Virgin Islands v. Gereau, in which the court said that “a fact-finder’s determination of credibility is not subject to appellate review.” The Anderson court pointed out that the Gereau court went on review the credibility determination at issue in this case. Gereau’s language, the court explained, merely reflected the deferential standard of review given to the district court’s credibility determinations.
Hopefully that clears up that.
United States v. Anderson, 2019 WL 3283282 (3d Cir. 2019), available at the Third Circuit and Westlaw.