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Improper qualified-immunity appeals, a new cert petition on the government’s use of mandamus in criminal cases, admiralty appeals, and more.

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Last week saw two decisions in which courts had to reject fact-based qualified-immunity appeals. A new cert petition asks if the government can use mandamus to take interlocutory appeals in criminal cases that are not otherwise authorized by statute. The Fifth Circuit addressed the appealability of decisions severing or transferring third-party admiralty claims. And the opposition to cert was filed in Baltimore’s climate-change litigation, which addresses the scope of remand appeals under 28 U.S.C. § 1447(d). Plus some decisions on appealing liability without a damages calculation, administrative appeals when the agency won’t decide a petition, and habeas exhaustion.

• A Divided Sixth Circuit Rejected a Fact-Based Qualified-Immunity Appeal
• So Did the Tenth Circuit
• New Cert Petition on the Government’s Use of Mandamus in Criminal Cases
• The Fifth Circuit Held That the Severance and Transfer of Third-Party Admiralty Claims Is Not Immediately Appealable
• Opposition to Cert Filed in the Scope of Remand Appeals
• Quick Notes

A Divided Sixth Circuit Rejected a Fact-Based Qualified-Immunity Appeal

In Sevy v. Barach, a divided Sixth Circuit dismissed part of a qualified-immunity appeal due to the defendant’s challenging the facts.

Simplifying a bit, Sevy involved First and Fourth Amendment claims against a court security officer. The plaintiff tried to pay a $10 parking ticket at the state courthouse in Royal Oak, Michigan. But he balked when told that he would be charged a $1.75 processing fee for using his debit card. The plaintiff then tried to pay in rolls of pennies. But a long-standing Michigan law provides that the court did not have to accept coins that weren’t pure gold or silver. So the clerk refused to accept the plaintiff’s pennies.

An argument between the plaintiff, the court clerk, and some court security guards—including the defendant—ensued. The plaintiff eventually tried to leave. What happened next was disputed. According to the plaintiff, the defendant court security officer threw him to the ground twice and choked him to the point of unconsciousness. The defendant contended that the plaintiff had acted aggressively, resisted arrest, and tried to headbutt the defendant.

The plaintiff later sued for excessive force. The district court denied immunity to the officer, and the officer appealed.

The Sixth Circuit dismissed the appeal to the extent it challenged the denial of immunity on the excessive-force claim. (The case included some other claims that are irrelevant to the jurisdictional issues.) Writing for a majority of the court, Judge McKeague concluded that the defendant only challenged the factual basis for the district court’s immunity decision. And that’s improper. In appeals from the denial of qualified immunity at summary judgment, defendants must accept as true the version of the events that the district court thought were supported by the record. Defendants cannot dispute whether the record supports those facts. They can argue only that the district court’s version of the facts do not amount to a clearly established violation of federal law. In other words, courts hearing a qualified-immunity appeal can address only the materiality of any fact disputes, not their genuineness.

An exception to this general rule exists when something in the summary-judgment record blatantly contradicts the district court’s version of the facts. The defendant in Sevy invoked this exception. The Sixth Circuit concluded, however, that a video of the altercation did not blatantly contradict the district court’s version of the facts. The video did not definitively show the plaintiff turning aggressively toward the defendant. The video also did not definitively show the plaintiff resisting arrest.

Without the blatant contradiction exception, the defendant was stuck with the district court’s version of the facts. And he never conceded that version of the facts for purposes of the appeal. The factual disputes were crucial to the plaintiff’s claims and the defendant’s immunity. So the court lacked jurisdiction to resolve the appeal.

Concurring in part and in the judgment, Judge Readler contended that the court had jurisdiction to review immunity on the excessive-force claim. Judge Readler said that in many qualified-immunity appeals, the court conducted at least some review of the facts. The Sixth Circuit has suggested, for example, that it might be able to review the factual inferences that a district court makes in denying immunity. The blatant-contradiction exception permits some review of the summary-judgment record to ensure that the court of appeals is not “working from a fictitious version of events.” And even when genuine fact disputes exist, the court shouldn’t dismiss an appeal “merely because the defendant made some factual arguments or used aspects of her own factual account in mounting a legal argument for qualified immunity.” Doing so would be “a disservice to the Court and the parties”:

[M]ore expansive jurisdiction maximizes qualified immunity protections for officials acting in good faith. It further guides and develops the law surrounding the constitutional questions before us. And it focuses future proceedings by identifying the controlling law and key disputes for trial.

So the court needed to be careful in distinguishing which arguments it had jurisdiction to review in qualified-immunity appeals. Dismissal was required, Judge Readler thought, when defendants challenge only the factual basis for assessing immunity and admit that the plaintiff’s version of events make out a clearly established violation of federal law. And as Judge Readler read the defendant’s brief, the defendant had made at least some arguments over which the court had jurisdiction. He argued “that the district court erred ‘in its application of the legal standard’ to the plaintiff’s version of events.” In other words, the defendant maintained that even under the plaintiff’s version of events, immunity was required. That’s the sort of legal argument over which the court had jurisdiction.

On the merits of qualified immunity for the excessive force claim, Judge Readler would have affirmed the denial of immunity.

Sevy v. Barach, 2020 WL 3564660 (6th Cir. July 1, 2020), available at the Sixth Circuit and Westlaw.

So Did the Tenth Circuit

Similarly, in Harris v. Janes, the Tenth Circuit dismissed a qualified-immunity appeal that challenged only the genuineness of fact disputes.

Harris was an excessive-force case against a police officer. The plaintiff alleged that after he was handcuffed and compliant, the officer threw him to the ground where, handcuffed and unable to break his fall, the plaintiff landed face first. The officer then kneed the plaintiff in the back, punched him, and pepper sprayed him. When the officer sought qualified immunity, the district court determined that genuine disputes of material fact precluded immunity:

[T]he court concluded that once Harris was handcuffed and announced he would cooperate in walking with Janes to the patrol car, a reasonable jury could find that Janes should have recognized that Harris did not present an immediate threat to officer safety.

The officer nevertheless appealed the denial of qualified immunity. And in that appeal, he “raise[d] only fact-based challenges to the district court’s denial of qualified immunity.” The officer offered “an alternate factual scenario without reference to the force he employed.” And “[b]ased on his preferred set of facts,” the officer sought immunity.

The Tenth Circuit called these arguments a “jurisdictional problem.”

The district court concluded that a reasonable jury could find that Harris, once handcuffed and walking to the patrol car, did not present an immediate threat and Janes should not have thrown him to the ground, kneed him in the back, punched him, and pepper sprayed him. The court then determined that evidence of those facts was sufficient to preclude summary judgment as to both elements of the qualified-immunity inquiry. This is precisely the type of evidentiary analysis that we lack jurisdiction to address, as it would require second-guessing the district court’s determinations of evidence sufficiency.

(Quotation marks omitted.) Further, the defendant did not dispute that the facts the district court took as true amounted to a clearly established violation of law. So the appeal was improper.

Harris v. Janes, 2020 WL 3495943 (10th Cir. June 29, 2020), available at the Tenth Circuit and Westlaw.

New Cert Petition on the Government’s Use of Mandamus in Criminal Cases

A new cert petition presents two mandamus-related questions for the Supreme Court.

Late last year, in In re United States, a divided Second Circuit used a writ of mandamus to prevent a defendant from arguing for jury nullification in a criminal case. The petition concerns two aspects of that decision. First, in concluding that the government had no other adequate means for relief, the Second Circuit emphasized the government’s limited ability to appeal in criminal cases. Second, as to the clear-and-indisputable-right requirement for mandamus, the court noted that on-point authority is not required and that issues of first impression were a “touchstone” of mandamus. The court equated this requirement to the clear-error standard of review for factual issues: “The ultimate question is simply whether, bearing in mind the exceptional nature of mandamus, we are left with the ‘firm conviction’ that the district court’s view of the law was incorrect.”

Dissenting in part, Judge Parker disputed the panel majority’s reading of the mandamus requirements. He noted that the government’s inability to appeal after a final judgment should not affect the propriety of mandamus; limited government appeals are a feature of the criminal appeals regime. And the clear-and-indisputable-right requirement was not met merely because the panel majority was “firmly convinced” that the district court erred:

That I am “firmly convinced” an error has occurred simply means that I believe I am correct. Someone’s firm conviction, however strong or sincere, is not (and can never be) the same thing as a “clear and indisputable right.” After all, a great many evidentiary or procedural rulings made during the course of a trial can leave an impression with one or another appellate judge that the ruling was incorrect. If a “firm belief” that error has occurred were sufficient, no justiciable standard for mandamus would, or could ever, exist.

The petition presents two questions. First, can the United States use mandamus to take an interlocutory appeal that is not permitted by 18 U.S.C. § 3731? And second, is an appellate court’s firm belief that an error occurred enough to show a clear-and-indisputable right necessary for mandamus? The petition contends that a circuit split exists on the first question and that the Second Circuit’s decision created a split on the second. You can follow the Supreme Court’s docket here. The response is due July 31, 2020.

Petition for Writ of Certiorari, Manzano v. United States, No. 19-1447 (June 26, 2020), available at the Supreme Court and Westlaw.

The Fifth Circuit Held That the Severance and Transfer of Third-Party Admiralty Claims Is Not Immediately Appealable

In National Shipping Co. of Saudi Arabia v. Valero Marketing & Supply Co., the Fifth Circuit held that a third-party plaintiff in an admiralty action could not appeal via 28 U.S.C. § 1292(a)(3) a district court decision severing and transferring third-party claims.

Simplifying a fair bit, National Shipping Co. involved multiple admiralty actions against Valero for allegedly providing contaminated fuel. Valero’s answer included third-party claims that sought to “tender” the third party as a direct defendant under Federal Rule of Civil Procedure 14(c). The third party moved to dismiss or transfer those claims. Some of them, the third party argued, were subject to forum-selection clauses, and others were covered by a mandatory-arbitration clause. The district court agreed and transferred or dismissed the third-party claims. Valero then tried to appeal.

The Fifth Circuit held that it lacked jurisdiction over the appeal. Under § 1292(a)(3), the courts of appeals can immediately review decisions “determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.” The district court’s decision, the Fifth Circuit concluded, did not determine anyone’s rights or liabilities. It instead determined where those rights and liabilities would be resolved (in a different district court or in arbitration). The dismissal of the third party as a tendered direct defendant did not change this analysis. Again, no rights or liabilities were determined, and the third party’s liability to Valero remained unresolved.

National Shipping Co. of Saudi Arabia v. Valero Marketing & Supply Co., 2020 WL 3527079 (5th CIr. June 30, 2020), available at the Fifth Circuit and Westlaw.

Opposition to Cert Filed in the Scope of Remand Appeals

The opposition to cert was filed in B.P. p.l.c. v. Mayor & City Council of Baltimore. The petition comes from Baltimore’s climate-change litigation against oil and gas companies, and it addresses the scope of remand appeals under the exceptions to 28 U.S.C. § 1447(d). You can read about the Fourth Circuit’s decision here. And we can also expect a second cert petition in a similar case out of the Ninth Circuit.

The petition is not yet scheduled for conference.

Brief of Respondent Mayor & City Council of Baltimore in Opposition, B.P. p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (June 29, 2020), available at the Supreme Court.

Quick Notes

Last week saw a few other decisions of note.

Two decisions illustrated the general rule that district court decisions on liability are not final or appealable until the district court determines the amount of damages. This is done to consolidate the issues into a single appeal. After all, a party that thinks the amount of damages is too high (or too low) might want to appeal that amount. And there’s no reason to have two appeals—one from liability and one from the amount of damages. (An exception to this general rule exists when calculating damages would be an uncontroversial technical or ministerial matter that would not produce a second appeal.) Courts have extended that reasoning to things like sanctions and attorneys’ fees.

In Hayslip v. Genuine Parts Co., the Sixth Circuit dismissed an appeal because the district court had not yet determined the amount of damages the prevailing party was owed. And in Latronica v. Local 1430, the Second Circuit dismissed a challenge to an award of attorneys’ fees and costs because the amount of fees and costs had not yet been determined.

In Allegheny Defense Project v. Federal Energy Regulatory Commission, the en banc D.C. Circuit held that it could review a petition to the Federal Energy Regulatory Commission if the Commission tolls deciding the petition for more than 30 days. The first two paragraphs of the opinion sum up the decision better than I can:

Before a party aggrieved by an order of the Federal Energy Regulatory Commission can obtain judicial review, that party must file an application for rehearing with the Commission. Congress directed that, if the Commission fails to act on that rehearing application within thirty days, the application may be deemed denied, allowing the aggrieved party to proceed to federal court.

The question in this case is whether the Commission can eliminate that statutorily prescribed consequence of its inaction—and, in doing so, stave off judicial review—by issuing a tolling order that takes no action on the application other than buying the Commission more time. We hold that, under the plain statutory language and context, such tolling orders are not the kind of action on a rehearing application that can fend off a deemed denial and the opportunity for judicial review. We therefore deny the Commission’s and Intervenor’s motions to dismiss the petitions filed after thirty days of Commission inaction.

On the merits, the D.C. Circuit denied the petition, which challenged a Commission decision allowing the condemnation of private land for a pipeline project.

And in Resendez v. Brown, the Seventh Circuit dismissed an appeal from an order dismissing a habeas petition due to failure to exhaust. The petitioner in Resendez had not exhausted his post-conviction remedies in Indiana state court. And those remedies remained available to him. The district court accordingly dismissed the federal petition without prejudice. And the Seventh Circuit has held that these sorts of dismissals are not final or appealable. It accordingly dismissed the appeal, saying that the petitioner could exhaust his state court remedies and then return to federal court.

Hayslip v. Genuine Parts Co., 2020 WL 3618886 (6th Cir. July 2, 2020), available at the Sixth Circuit and Westlaw.

Latronica v. Local 1430, 2020 WL 3526393 (2d Cir. June 30, 2020), available at the Second Circuit and Westlaw.

Allegheny Defense Project v. Federal Energy Regulatory Commission, 2020 WL 3525547 (June 30, 2020), available at the D.C. Circuit and Westlaw.

Resendez v. Brown, 2020 WL 3578490 (7th Cir. July 1, 2020), available at the Seventh Circuit and Westlaw.