The weekly roundup of decisions and other developments in federal appellate jurisdiction.
July 6, 2019
There were several interesting appellate-jurisdiction decisions this week, with many of them coming out of the Third Circuit. Decisions touched on qualified-immunity, pendent appellate jurisdiction over municipal-liability claims, preliminary injunctions, tolling appeal-filing deadlines, appellate waivers in plea agreements, and appeals under the Bail Reform Act.
Let’s start, however, with a fascinating new cert petition.
Cert petition on anti-SLAPP appeals
A new cert petition—Andreoli v. Youngevity International Corp., No. 19-20 (PDF, 534KB)—asks the Supreme Court to decide whether denials of motions to strike under state anti-SLAPP laws are appealable under the collateral-order doctrine. The petition argues that a circuit split exists on the appealability of anti-SLAPP denials, with the Fifth and Ninth Circuits holding that they’re appealable and the Second Circuit holding that they’re not. The response is due August 1, 2019. You can follow the Supreme Court’s docket here.
Note, the petition does not address the Erie issues raised by the application of state anti-SLAPP laws in federal courts.
Third Circuit rejects county’s attempt to piggyback a municipal-liability issue in a qualified-immunity appeal; concurrence emphasizes importance of detailed denials of qualified immunity
In E.D. v. Sharkey (PDF, 274 KB), the Third Circuit rejected a municipality’s attempt to appeal the denial of summary judgment on municipal liability alongside individual defendants’ interlocutory qualified-immunity appeal. (I’ve previously criticized municipalities’ attempts to do so.)
A concurring judge emphasized the need for district courts to explain their denials of qualified immunity at the summary-judgment stage. The Supreme Court’s decision in Johnson v. Jones generally limits the scope of interlocutory qualified-immunity appeals to whether the district court’s assumed facts make out a clear constitutional violation. The Third Circuit accordingly created a supervisory rule in Forbes v. Township of Lower Merion that requires district courts to specify what material facts are and are not genuinely disputed and explain their materiality. The concurring judge thought it important “to underscore the continued importance that our judges attach to compliance with the Forbes rule”: “A comprehensive and detailed summary judgment opinion, specifying those facts that are undisputed as well as those that are material and subject to genuine dispute, is vital—and often essential—to our meaningful review on appeal.”
Third Circuit reviews earlier summary-judgment decision as part of a preliminary-injunction appeal
In TD Bank N.A. v. Hill (PDF, 311 KB), the Third Circuit held that the scope of an interlocutory appeal from a preliminary injunction included an earlier summary judgment decision.
The case was another chapter in the dispute between former Commerce Bank CEO Vernon W. Hill, II, and TD Bank (which acquired Commerce Bank several years ago). Simplifying a bit, the case stemmed from TD Bank’s allegations that Hill’s book FANS! Not Customers: How to Create Growth Companies in a No-Growth World infringed a copyright owned by TD Bank. The district court held on summary judgment that Hill’s book infringed TD Bank’s copyright, but the court did not enjoin sale or distribution of Hill’s book because TD Bank had failed to show a likelihood of future infringement. About a year later, TD Bank showed the district court that Hill continued promoting and distributing the book. The district court accordingly entered a preliminary injunction barring Hill from doing so. There was no final judgment, however, as issues regarding TD Bank’s damages remained unresolved.
Hill appealed from the preliminary injunction and, in doing so, challenged the district court’s conclusion that his book violated TD Bank’s copyright. But Hill did not identify the summary judgment decision in his notice of appeal. And although preliminary injunctions are immediately appealable under 28 U.S.C. § 1292(a)(1), summary-judgment decisions normally aren’t. TD Bank thus argued that the copyright-infringement decision was not before the court.
The Third Circuit disagreed. To the extent Hill erred in not identifying the summary-judgment decision in his notice of appeal, the mistake was understandable: the summary-judgment decision was not itself immediately appealable. And reviewing the summary-judgment decision was necessary to review the preliminary injunction. The district court based the injunction on its conclusions at summary judgment that TD Bank owned the copyright at issue and that Hill’s book violated it. And TD Bank was not the least bit prejudiced by the Third Circuit’s addressing the summary-judgment decision; the bank had notice of Hill’s disputing that decision and had fully briefed its merits.
D.C. Circuit holds that motions for reconsideration toll the time for filing notices of appeal from Tax Court decisions
In Myers v. Commissioner of Internal Revenue Service (PDF, 297 KB), the D.C. Circuit held that a motion for reconsideration of a Tax Court order tolls the time for appealing that court’s order.
Appeals from Tax Court orders normally must be filed within 90 days. Federal Rule of Appellate Procedure 13(a)(1)(B) provides that a timely motion “to vacate or revise” the Tax Court’s decision tolls that deadline. But there was no motion “to vacate or revise” in Myers; the claimant filed only a motion “for reconsideration.”
The D.C. Circuit nevertheless held that motions for reconsideration toll the time for filing a notice of appeal under Rule 13(a)(1)(B). Granted, the Tax Court Rules seem to differentiate between motions to vacate and revise—which are brought under Tax Court Rule 162—and motions for reconsideration—which are brought under Tax Court Rule 161. But the motions are functionally the same. And to treat them differently for tolling purposes would serve no real purpose while creating a trap for unwary litigants.
Also of procedural interest, a split panel went on to hold that the 30-day period for appealing the denial of a whistleblower award was not jurisdictional and was thus subject to equitable tolling.
Third Circuit holds that appellate waiver for “any sentence” doesn’t apply to appealing a conviction
In United States v. James (PDF, 62KB), the Third Circuit held that it could hear a criminal defendant’s appeal from an order denying withdrawal of a guilty plea despite an appellate waiver. The defendant’s plea agreement had waived only his right to appeal “any sentence.” It did not waive the right to appeal his conviction. And his appeal challenged the district court’s refusal to withdraw his guilty plea. Given that appellate waivers should be strictly construed, this waiver—by its own terms, and which the government drafted—did not bar the defendant’s appeal.
Tenth Circuit allows interlocutory appeal of a party’s civil-contempt in post-judgment proceedings
In CGC Holding Company, LLC v. Hutchens (PDF, 161 KB), the Tenth Circuit heard an appeal from a party’s being held in civil contempt. Normally parties cannot immediately appeal a civil contempt order; they must wait until after district court proceedings to do so. (Parties can immediately appeal being held in criminal contempt, and non-parties can immediately appeal both kinds of contempt orders.) But the party in CGC Holding had been held in civil contempt as part post-judgment proceedings. And courts have held that a civil-contempt order entered in post-judgment proceedings is final and appealable once the contempt finding has been made and the sanction imposed.
This is an example of the looser, more pragmatic approach to finality that courts have applied in post-judgment proceedings. I wrote a bit about this several years ago in a law review article, Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction.
Third Circuit holds that it can review whether Bail Reform Act release forecloses ICE detention
In United States v. Soriano Nunez (PDF, 91 KB), the Third Circuit held that it had jurisdiction to review an order denying a defendant’s claim that her Bail Reform Act release order foreclosed her Immigration and Customs Enforcement detention.
The defendant in Soriano Nunez had been arrested for a variety of federal crimes and arraigned. The district court then ordered her released with conditions under the Bail Reform Act. But upon the defendant’s release she was arrested and detained by ICE pending deportation proceedings. She then asked the district court to dismiss her indictment and order her released from ICE detention, relying on the Bail Reform Act release order. The district court refused, and the defendant appealed.
The court had no trouble concluding that it lacked jurisdiction over the defendant’s appeal from the district court’s refusal to dismiss her indictment; only a few interlocutory orders in criminal proceedings are immediately appealable, and this isn’t one of them.
The release issue was different. The Bail Reform Act allows immediate appeals from “a release or detention order, or from a decision denying revocation or amendment of such an order.” And the defendant in Soriano Nunez was essentially appealing the district court’s refusal to enforce her release order—that is, the district court’s “rejection of her assertion that the [Bail Reform Act] order requires her release from ICE custody.” The court accordingly had jurisdiction over the appeal.
The Third Circuit ultimately held that the Bail Reform Act release order did not require the defendant’s release from ICE custody.
Seventh Circuit explains how amended pleadings can moot an appeal from a preliminary injunction
In Auto Driveaway Franchise Systems, LLC v. Auto Driveaway Richmond, LLC (PDF, 200 KB), the Seventh Circuit held that it had jurisdiction to review a preliminary injunction despite the plaintiff’s post-injunction amendments to its complaint. The court (in an opinion by Chief Judge Wood) explained how post-injunction developments can moot a preliminary-injunction appeal. Factual developments can moot a controversy because the injunction under review no longer has any practical effect. And procedural developments—such as entry of a permanent injunction—can also moot an appeal from a preliminary injunction.
In Auto Driveaway, however, the amended complaint had not changed the plaintiff’s basic grievance; it merely added a party. And the injunction was still in place, constraining the defendants’ actions. The Seventh Circuit’s decision would have real-world consequences. So a live controversy still existed.
Third Circuit holds that amended final order did not restart time for filing a notice of appeal
In Hipple v. SCIX, LLC (PDF, 42 KB), the Third Circuit held that a notice of appeal filed months after an original final order but within 30 days of an amended final order was untimely. The defendant in Hipple had lost a trademark dispute, with the district court holding that the defendant fraudulently obtained the mark. The district court then appointed a receiver to petition the Patent and Trademark Office to cancel the mark. But the Office informed the receiver (who in turn informed the court) that a petition was unnecessary; given the district court’s determination of fraud, all that was needed was an amended order that specified the mark’s registration and ordered its cancellation.
The defendant in Hipple appealed only from the second order, and the notice of appeal was filed more than 30 days after the original order. The Third Circuit noted that an amended order must affect the parties’ substantive rights or resolve a genuine ambiguity to restart the time for filing a notice of appeal. Here, the amended order did not do so. Addition of the mark’s registration was a clerical amendment. And no meaningful difference existed between allowing the receiver to petition the Patent and Trademark Office to cancel a mark and directly ordering its cancellation. The defendant’s notice of appeal was accordingly untimely, and the court dismissed for lack of appellate jurisdiction.