The Week in Federal Appellate Jurisdiction: June 21–27, 2020

Last week, in a split, unpublished opinion, Seventh Circuit held that motions to reconsider the denial of First Step Act relief extend the time for appealing. The D.C. Circuit held that would-be intervenors seeking to unseal judicial records can immediately appeal the denial of permissive intervention. The Tenth Circuit addressed its jurisdiction to review an order adding entities to a receivership. And in an interlocutory qualified-immunity appeal, the Fourth Circuit held that immunity was not available in qui tam suits. Plus two improper qualified-immunity appeals in which the defendants disputed the genuineness of fact disputes.

• The Seventh Circuit Split on Whether Motions to Reconsider Extend the Time for Appealing First Step Act Denials
• The D.C. Circuit Held That Denials of Permissive Intervention Are Immediately Appealable
• The Tenth Circuit on Receivership Appeals
• The Fourth Circuit Addressed the Availability of Qualified Immunity in a Qui Tam Suit
• This Week’s Improper Qualified-Immunity Appeals

The Seventh Circuit Split on Whether Motions to Reconsider Extend the Time for Appealing First Step Act Denials

In United States v. Rutherford, a divided Seventh Circuit held that a motion to reconsider the denial of First Step Act relief extended the time for filing a notice of appeal. The majority concluded that these motions were common law motions to reconsider. And common law motions to reconsider in criminal cases extend the time for appealing; the motion makes the judgment non-final, and the judgment becomes final only after the district court resolves the motion. Dissenting, Judge Barrett contended that the motion for reconsideration was one under Federal Rule of Criminal Procedure 35. And Rule 35 motions to not extend the time for appealing.

For more, see my post Extending the Time for Appealing First Step Act Denials.

United States v. Rutherford, 2020 WL 3428965 (7th Cir. June 23, 2020), available at the Seventh Circuit and Westlaw.

The D.C. Circuit Held That Denials of Permissive Intervention Are Immediately Appealable

In League of Women Voters v. Newby, the D.C. Circuit held that would-be intervenors seeking to unseal judicial records may immediately appeal the denial of permissive intervention.

The underlying suit in League of Women Voters challenges the Election Assistance Commission’s decision allowing states to require documentary proof of citizenship on mail-in voter-registration forms. The Department of Justice has refused to defend the Commission’s action, so Kansas (one of the states that obtained permission to add the documentary-proof requirement) and an election-law organization intervened to defend the decision. The district court allowed the parties to depose former the Commission director over the privilege objection of the United States. But the district court also ordered that the parties could not disclose any information from that deposition before the court could rule on any privilege objections. So filings that contained information from those depositions were sealed.

The Eagle Forum sought permissive intervention to gain access to these sealed filings. The district court denied permissive intervention, concluding that the Eagle Forum’s interests were adequately represented and that the filings were not yet judicial records. The Eagle Forum appealed.

Analogizing to prior decisions allowing appeals from orders to unseal and refusing to disclose documents, the D.C. Circuit held that these denials of permissive intervention were appealable via the collateral-order doctrine. That doctrine allows immediate appeals from district court decisions that (1) the district court conclusively decided, (2) present important issues completely separate from the merits, and (3) would be effectively unreviewable on appeal from a final judgment. The would-be intervenors were obviously not a party to the underlying suit, which did not involve access to judicial records. The denial of intervention was thus separate from the merits. And the the district court conclusively resolved whether the would-be intervenors could participate in the case.

The D.C. Circuit accordingly held that it had jurisdiction over the appeal. On the merits of intervention, the D.C. Circuit held that the district court erred in denying intervention. It remanded for the district court to determine if unsealing was appropriate.

Note, the court did not address whether the denial of intervention would be effectively unreviewable on appeal from a final judgment. It’s not clear to me that it the decision would be unreviewable. Granted, when a party seeks to intervene to litigate a case, review has to be immediate to be effective; no court of appeals is going to undo a case litigated to a final judgment because someone was not allowed to permissively intervene. But when a party seeks access to court documents, there’s no concern about the intervenor’s effect on the litigation.

But that doesn’t mean denials of intervention to unseal records should be unappealable. The case is over for the would-be intervenor. And the underlying litigation might never produce a final judgment if the parties settle. Given the separateness from the underlying litigation, little harm seems to come from allowing these immediate appeals, even without going the collateral-order route.

Another note: this is a rare kind of intervention appeal: the court of appeals reversed the denial of permissive intervention. These reversals are so rare that I’ve questioned whether we need appeals from the denial of permissive intervention.

League of Women Voters v. Newby, 2020 WL 3477033 (D.C. Cir. 2020), available at the D.C. Circuit and Westlaw.

The Tenth Circuit on Receivership Appeals

In United States v. Solco I, LLC, the Tenth Circuit held that entities added to a receivership could not immediately appeal from the order adding them.

Simplifying a bit, the appeal in Solco arose out of a receivership appointed to recover funds gained from an illicit tax scheme. The defendants had sold non-existent solar leases to taxpayers, who then took improper credits or deductions for engaging in the solar energy trade. The government brought a civil action against these parties and won a judgment of about $50 million. The district court then appointed a receiver to help recover the judgment. And at the receiver’s request, the district court added several non-parties to the receivership; the receiver explained that these entities were related to the defendants’ fraudulent scheme. That meant the receiver could seek funds from these entities. Six of the added entities objected to their inclusion. When the district court rejected their objections, they appealed.

The Tenth Circuit held that it lacked appellate jurisdiction. 28 U.S.C. § 1292(a)(2) permits immediate appeals of certain interlocutory orders relating to receiverships:

[T]he courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property.

Courts read this provision narrowly. Although Congress thought orders appointing receivers should be immediately appealable due to their potential effects on property rights, Congress did not intend for ongoing appellate supervision of a receiver’s every action.

The order adding the entities to the receivership did not fall under § 1292(a)(2). A receiver had already been appointed before the entities were added. And the Tenth Circuit rejected the argument that expanding the receivership order to include them effectively appointed a receiver. While declining to hold that expansion of a receivership could never be appealed under § 1292(a)(2), the court gave several reasons why the added entities in Solco could not appeal. These reasons mostly boiled down to the conclusion that the added entities could have—and should have—appealed from the original order appointing the receiver. The original defendants in Solco had appealed under § 1292(a)(2) to challenge the appointment of the receiver. The original receivership order had given the receiver control over funds that were in possession of the added entities. And the receivership order had frozen the added entities’ assets. The added entities had every reason to appeal alongside the defendants. They didn’t. So they couldn’t do so now.

United States v. Solco I, LLC, 2020 WL 3407013 (10th Cir. June 22, 2020), available at the Tenth Circuit and Westlaw.

The Fourth Circuit Addressed the Availability of Qualified Immunity in a Qui Tam Suit

In United States ex rel. Citynet, LLC v. Gianato, the Fourth Circuit held that it could address whether qualified immunity was available in a qui tam action as part of a qualified-immunity appeal.

The plaintiff in Citynet sued two West Virginia officials, alleging that the officials had “defrauded the United States when obtaining federal funding for a program to improve broadband connectivity for West Virginia residents, in violation of the False Claims Act.” The officials moved to dismiss. They argued (among other things) that they were entitled to qualified immunity on the claim. The district court thought that more discovery was necessary before it could decide immunity. That deferral effectively denied qualified immunity, and the officials appealed.

The Fourth Circuit concluded that it had jurisdiction to address whether qualified immunity was a valid defense in a False Claims Act action. Although factual disputes prevented the district court from deciding immunity, the district court also made an antecedent legal conclusion that qualified immunity was available in this context. That was a pure legal question, the Fourth Circuit said, over which the court had interlocutory appellate jurisdiction.

The Fourth Circuit went on to hold that qualified immunity was not an available defense in False Claims Act cases. The Act requires intentional or reckless conduct, and intentional or reckless conduct “necessarily forfeits any entitlement to qualified immunity.”

United States ex rel. Citynet, LLC v. Gianato, 2020 WL 3406446 (4th Cir. June 22, 2020), available at the Fourth Circuit and Westlaw.

This Week’s Improper Qualified-Immunity Appeals

Speaking of qualified-immunity appeals, this week saw more examples of defendants improperly taking these appeals to dispute the genuineness of fact disputes.

First is the Ninth Circuit’s decision in Le v. Molina. Le involved a fatal shooting, and the decedent’s family sued the police officer and the county that employed him for excessive force. The district court denied qualified immunity. And in their interlocutory appeal, the defendants failed to accept the facts that the district court had taken as true in denying immunity. The parties disputed, for example, whether the officer should have known that the decedent was unarmed, and the district court concluded that a reasonable jury could find that the officer should have known this. On appeal, the defendants argued that the decedent “presented an immediate threat to deputies and bystanders because [the officer] had reason to believe that [the decedent] was armed.” The defendants thus failed to present any arguments over which the Ninth Circuit had jurisdiction. The court accordingly dismissed the appeal.

The Tenth Circuit faced a similar appeal in Sawyers v. Norton. While held in pretrial detention, the plaintiff in Sawyers suffered from delusions and engaged in extreme self harm, eventually removing his right eye. The plaintiff sued his jailers for deliberate indifference to his serious medical needs. The district court denied qualified immunity. And in their appeal from that denial, the defendants disputed what facts a jury could find regarding their knowledge of the plaintiff’s risk to himself. Their arguments could not “reasonably be understood as anything other than an attack on the factual conclusions of the district court.” (Cleaned up.) The Tenth Circuit accordingly dismissed that portion of the appeal.

Le v. Molina, 2020 WL 3410889 (9th Cir. June 22, 2020), available at the Ninth Circuit and Westlaw.

Sawyers v. Norton, 2020 WL 3424927 (10th Cir. June 23, 2020), available at the Tenth Circuit and Westlaw.