The Week in Federal Appellate Jurisdiction: June 27–July 3, 2021

Last week saw several decisions tackling difficult appellate-jurisdiction issues. Primary among them was the Seventh Circuit’s decision recognizing the messiness in its decisions reviewing extensions of the appeal deadline for excusable neglect. That court treats the excusable-neglect requirement as jurisdictional, but it reviews these excusable-neglect determinations only for an abuse of discretion.

In other decisions, the Ninth Circuit had to address its jurisdiction in post-judgment proceedings overseeing a consent decree. The First Circuit deemed a stay indefinite and thus appealable. Several courts rejected attempts to challenge the factual basis for qualified-immunity denials. In another qualified-immunity appeal, the Eighth Circuit rejected a city’s attempt to appeal a Monell issue via pendent appellate jurisdiction. And the en banc Fourth Circuit missed an opportunity to address the jurisdictionality of immigration exhaustion.

Finally, the Supreme Court denied cert in two cases of note.

• The Seventh Circuit Avoided Its “Messy” Caselaw on Reviewing Excusable-Neglect Determinations Under Rule 4(a)(5)
• The Ninth Circuit Deemed Final an Order Enforcing a Consent Decree
• The First Circuit Held that an Indefinite Stay Was an Appealable Final Decision
• This Week’s Improper Qualified-Immunity Appeals
• The Eighth Circuit Dismissed a City’s Attempt to Piggyback on a Qualified-Immunity Appeal
• The En Banc Fourth Circuit Divided on Immigration Exhaustion but Didn’t Question Whether Exhaustion Is Jurisdictional
• Cert Denials

The Seventh Circuit Avoided Its “Messy” Caselaw on Reviewing Excusable-Neglect Determinations Under Rule 4(a)(5)

Federal Rule of Appellate Procedure 4(a)(5) permits district courts to extend the appeal deadline upon a showing of good cause or excusable neglect. The Seventh Circuit has held that this good-cause/excusable-neglect requirement is jurisdictional. That means the court of appeals must police the good-cause/excusable-neglect requirement on its own initiative, even if the parties do not dispute it. But the Seventh Circuit has also said that review of the district court’s good-cause/excusable-neglect requirement is deferential. So the court of appeals would not closely scrutinize the district court’s decision. Instead, the Seventh Circuit would ask only whether that decision was reasonable.

The combination of a jurisdictional rule and deferential review can be awkward. As much can be seen in yesterday’s decision in Nartley v. Franciscan Health Hospital. There, the Seventh Circuit avoided deciding whether an appellant had shown excusable neglect to warrant an extension of the appeal deadline. The court could do so because the appellant had made clear her intention to appeal before the original deadline expired. But the Seventh Circuit acknowledged that its caselaw in this area was “messy.” And it would eventually have to tackle “hard questions at the outer bounds of what constitutes good cause or excusable neglect.”

For more, see my post The Seventh Circuit and Appeal Extensions for Excusable Neglect

Nartley v. Franciscan Health Hospital, 2021 WL 2644282 (7th Cir. June 28, 2021), available at the Seventh Circuit and Westlaw.

The Ninth Circuit Deemed Final an Order Enforcing a Consent Decree

Extensive post-judgment proceedings sometimes follow a district court’s determination of the parties’ rights. These proceedings might involve efforts to collect on a judgment. Or they might involve a district court’s supervision of a consent decree or remedial injunction. These post-judgment proceedings are considered a separate action for finality purposes. So litigants have a right to appeal from a final decision. That often means the decision that marks the end of the post-judgment proceedings. But it’s not always apparent when those proceedings will end. That uncertainty has required a more nuanced approach to appellate jurisdiction.

In Flores v. Garland, the Ninth Circuit reviewed a district court decision enforcing a consent decree on the conditions of immigration detention for minors. Interestingly, the court had initially suggested that it lacked jurisdiction over the case. When denying the government’s request to stay the district court decision pending the appeal, the Ninth Circuit suggested that the decision was not an appealable injunction under 28 U.S.C. § 1292(a)(1). But when the panel reached the merits, it concluded that the district court’s decision was a final one under 28 U.S.C. § 1291. The decision had a significant impact in applying the consent decree to a particular group of immigrants. And an immediate appeal might be the government’s only opportunity for review of the district court’s decision.

For more, see my post Flores & Appeals in Post-Judgment Proceedings.

Flores v. Garland, 2021 WL 2673142 (9th Cir. June 30, 2021), available at the Ninth Circuit and Westlaw.

The First Circuit Held that an Indefinite Stay Was an Appealable Final Decision

In Conservation Law Foundation, Inc. v. Exxon Mobil Corp., the First Circuit reversed an order indefinitely staying an environmental suit under the primary-jurisdiction doctrine. Before doing so, the court first concluded that the stay decision was final under 28 U.S.C. § 1291.

Simplifying a bit, Conservation Law Foundation involved a variety of environmental claims concerning a petroleum storage and distribution site near Boston’s Mystic River. An environmental group alleged that the operator of the site was violating its water-discharge permit. In response, the operator sought to stay the action under the primary-jurisdiction doctrine, which “promot[es] proper relationships between the courts and administrative agencies charged with particular regulatory duties.” The operator had applied to the Environmental Protection Agency for a new water-discharge permit. According to the operator, the Agency’s decision “would likely resolve ‘most, if not all, of the disputed issues’ in the case.” The district court granted the stay. The environmental group then appealed.

The First Circuit determined that the stay was an appealable final decision. Granted, stays normally aren’t considered final. Stays often pause district court proceedings with the assumption that they will restart. But stays can be final and appealable when they effectively mark the end of those proceedings. This can happen when other proceedings—such as a suit in state court—might definitively resolve some of the issues in the federal suit. Or it can happen when a stay “impose[s] lengthy or indefinite delays.”

The stay in Conservation Law Foundation satisfied this second option. The operator had applied for its new permit over eight years ago. The application has been pending before the Environmental Protection Agency since. And although the Agency intended to issue the new permit by next fall, that would still mean a significant delay in the environmental group’s action. So even though the district court would eventually lift the stay and resume proceedings, the stay was sufficiently indefinite to make it final.

The First Circuit added that “[f]or an indefinite stay to confer appellate jurisdiction under § 1291, the stay must also be unnecessary.” In other words, the court of appeals needs to reverse or vacate the stay for the court to have jurisdiction. This is an odd mixing of jurisdiction and an appeal’s merits. But the First Circuit also determined that the stay in Conservation Law Foundation was unnecessary. The court accordingly had jurisdiction over the appeal.

Conservation Law Foundation, Inc. v. Exxon Mobil Corp., 2021 WL 2699068 (1st Cir. June 1, 2021), available at the First Circuit and Westlaw.

This Week’s Improper Qualified-Immunity Appeals

Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.

Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation. These improper appeals are also one of the main reasons why, should qualified immunity stick around in its current or an altered form, the rules governing qualified-immunity appeals need to change.

Last week saw a few examples of these improper qualified-immunity appeals.

Oliver v. Arnold

First is the Fifth Circuit’s decision in Oliver v. Arnold.

Oliver involved several First Amendment claims that a student brought against a high school teacher. The student alleged that the teacher forced students to transcribe the Pledge of Allegiance “as a mandatory statement of patriotic belief.” The student refused to complete the assignment, and she alleged that the teacher then retaliated against her.

When the teacher sought summary judgment on qualified-immunity grounds, the district court determined that several genuine factual disputes precluded immunity. According to the district court, a reasonable jury could conclude that the teacher “assigned transcription of the Pledge with the impermissible motive of requiring a statement of patriotism from his students.” A reasonable jury could also conclude that the teacher retaliated against the student by threatening to give her a zero on the assignment, treating her differently than other students, and giving a speech in class “in which he lamented what he viewed as the decline of American values and decried a variety of people whose attitudes he deemed to be un-American.”

The teacher appealed from the denial of qualified immunity. But his appeal challenged the facts that the district court thought a reasonable jury could find. He argued that the transcription assignment had a legitimate pedagogical purpose. He argued that he did not harass the student or treat her differently. And he argued that he did not intend to instill patriotism among students or have any intent to retaliate against the student.

The district court determined that all of these factual issues were genuinely disputed—a reasonable jury could find facts different than those that the teacher urged on appeal. The Fifth Circuit accordingly lacked jurisdiction to consider the teacher’s factual challenges. For the purposes of the qualified-immunity appeal, the court had to assume that the teacher “gave the Pledge assignment for impermissible purposes, rendering [the student]’s refusal protected activity; that [the teacher] singled [the student] out and treated her differently than other students; and that these adverse actions were motivated by hostility to [the student]’s refusal to complete the Pledge assignment.” Assuming those facts to be true, the teacher violated clearly established law.

Judge Duncan dissented. Even taking the district court’s version of the facts as true, he thought that the law was not clearly established. He accordingly would have reversed the denial of immunity.

Oliver v. Arnold, 2021 WL 2660249 (5th Cir. June 29, 2021), available at the Fifth Circuit and Westlaw.

Taylor v. St. Louis Community College

The Eighth Circuit dismissed a similar factual challenge in Taylor v. St. Louis Community College.

Taylor involved a college professor’s excessive force claims against a police officer. After the professor spoke at a college board meeting, an officer arrested him. In the course of doing so, the officer swept the professor’s leg and drove the professor into the ground. In seeking qualified immunity, the officer argued that the professor had starting charging at the board members, requiring the officer to use force to stop him. But according to the district court, a reasonable jury could find that the professor had not charged the board or made any other movements that would warrant the officer’s use of force. The district court accordingly denied immunity.

The officer appealed. But in that appeal, he continued to argue that the professor charged at the board members, rendering the use of force reasonable. The officer’s appeal was thus a factual one—“[t]he parties’ inordinate focus on the facts pertaining to the takedown, both in the briefing and at oral argument, demonstrates that the heart of the arguments on appeal involves disputed facts.” And the Eighth Circuit could not review the genuineness of those factual disputes:

In order for us to reach [the officer]’s “legal argument” that he responded reasonably and did not violate clearly established law, we would have to exceed our jurisdiction and cast aside the district court’s factual findings, analyze the factual record, and resolve genuine factual disputes against the non-moving party. This we cannot do.

The Eighth Circuit added that nothing in the record blatantly contradicted the district court’s conclusions, which might allow the court to review the genuineness of any fact disputes. The court accordingly dismissed the appeal.

Taylor v. St. Louis Community College,2021 WL 2690967 (8th Cir. July 1, 2021), available at the Eighth Circuit and Westlaw.

Post v. City of Munroe Falls

In Post v. City of Munroe Falls, the Sixth Circuit affirmed the denial of qualified immunity upon determining that the defendants’ arguments relied on their own version of the facts.

Simplifying a fair bit, Post involved a former police officer’s First Amendment-retaliation suit against officials of the city that used to employ him. The officer alleged that he had been fired for speaking publicly about the police department’s reliance on part-time officers. The defendants responded that the officer had been fired for improperly accessing a law-enforcement database. At summary judgment, the district court determined that the reason for the officer’s termination was genuinely disputed—a reasonable jury could find that the database rationale was pretextual and that the officer was fired for his public statements. The district court accordingly denied qualified immunity.

The defendants appealed. But their arguments on appeal relied on their claimed reasons for firing the officer. That is, the defendants continued to argue that they had fired the officer for accessing the law-enforcement database.

The Sixth Circuit rejected this attempt to challenge the factual basis for the immunity denial. The district court had determined that the true reason for the termination was genuinely disputed. The Sixth Circuit could not disturb that determination in a qualified-immunity appeal. And based on the facts that the district court thought a reasonable jury could find, the officer had shown a clearly established violation of the First Amendment.

Note, the Sixth Circuit affirmed the denial of qualified immunity rather than dismiss the appeal. Courts sometimes do this when a defendant’s arguments challenge the factual basis for an immunity denial: the court rejects or ignores the factual challenges and then then reviews the denial of immunity on the district court’s version of events.

Post v. City of Munroe Falls, 2021 WL 2769214 (6th Cir. July 1, 2021), available at the Sixth Circuit and Westlaw.

The Eighth Circuit Dismissed a City’s Attempt to Piggyback on a Qualified-Immunity Appeal

In Watson v. Boyd, the Eighth Circuit dismissed a city’s appeal from the denial of summary judgment on a Monell claim.

Watson involved several civil-rights claims against a police officer who arrested the plaintiff and the city that employed the officer. The district court denied both defendants’ motions for summary judgment. The officer then appealed, arguing that the district court wrongly denied the officer’s request for qualified immunity. The city tried to appeal alongside the officer.

The Eighth Circuit vacated the denial of immunity to the officer and remanded his appeal for a more detailed analysis. But that did not allow the court to also review the denial of summary judgment on the city’s motion. Denials of summary judgment on municipal-liability claims are normally not immediately appealable. The court of appeals can review those denials only via pendent appellate jurisdiction. And the Eighth Circuit, like most courts of appeals, holds that it can extend pendent appellate jurisdiction to a city’s appeal only if the resolution of the qualified-immunity appeal necessarily resolves the municipal claim. “Any other resolution of the appeal will not resolve the question of the municipality’s liability,” leaving the court without jurisdiction. That was the case in Watson. The court had vacated the denial of immunity because of an inadequate analysis by the district court. That did not resolve the plaintiff’s municipal claims.

Watson v. Boyd, 2021 WL 2671317 (8th Cir. June 30, 2021), available at the Eighth Circuit and Westlaw.

The En Banc Fourth Circuit Divided on Immigration Exhaustion but Didn’t Question Whether Exhaustion Is Jurisdictional

In Portillo Flores v. Garland, the en banc Fourth Circuit reversed a Board of Immigration Appeals decision denying an immigration petitioner’s request for asylum, withholding of removal, and protection under the Convention Against Torture. Among the issues in the case was whether the petitioner had exhausted his arguments before the Board. The majority thought that he had, while the dissent disagreed.

Interestingly, the government did not raise the exhaustion issue until argument before the en banc court. The Fourth Circuit (like most circuits) has held that immigration exhaustion is jurisdictional. The government accordingly could not forfeit the issue, and the court had to address it.

But not everyone agrees that immigration exhaustion is jurisdictional. The Second and Seventh Circuits both treat exhaustion as non-jurisdictional. Judge Murphy of the Sixth Circuit has questioned his court’s rule that exhaustion is jurisdictional. And a Tenth Circuit panel recently applied that court’s jurisdictional rule “with some reluctance.” Further, a recent cert petition asks the Supreme Court to address the matter.

Given that the government failed to timely raise the exhaustion requirement and the Fourth Circuit’s sitting en banc, this might have been a good opportunity for that court to reexamine its holding that immigration exhaustion is jurisdictional.

Portillo Flores v. Garland, 2021 WL 2655334 (4th Cir. June 29, 2021), available at the Fourth Circuit and Westlaw.

Cert Denials

The Supreme Court denied cert in two cases of note in the past few weeks.

First was Kong v. City of Burnsville. Full disclosure, I filed an amicus brief in support of cert in that case. The case asked if an appellate court could reject the factual basis for a qualified-immunity denial without invoking an exception to Johnson v. Jones. I had hoped that the Court would take up the case to make the limited scope of qualified-immunity appeals unmistakably clear.

Second was CACI Premier Technology, Inc. v. Al Shimari. The case asked if defendants could appeal from the denial of derivative sovereign immunity via the collateral-order doctrine.