Oral argument on Convention Against Torture appeals, a deepened split on the scope of remand appeals, untimely and potentially improper notices of appeal, and more.
March 9, 2020
Last week saw several developments and decisions of note. The Supreme Court heard argument in Nasrallah v. Barr, which involves the scope of review in appeals from the denial of relief under the Convention Against Torture. In Baltimore’s climate-change litigation, the Fourth Circuit deepened the split on the scope of remand appeals. The Eleventh Circuit untangled some issues with notices of appeal and clarified its caselaw on Federal Rule of Appellate Procedure 3(c)’s order-designation requirement. Plus appeals involving agency decisions, qualified immunity, post-judgment proceedings, dismissals without prejudice, and much more.
- Oral argument in Nasrallah v. Barr
- The Fourth Circuit deepened the split on the scope of remand appeals
- The Eleventh Circuit on the timing and content of notices of appeal
- The Sixth Circuit on appealing First Step Act sentence-reduction denials
- The Federal Circuit dismissed a petition to review an agency’s letter threatening to suspend educational payments
- The week’s improper qualified-immunity appeals
- The Second Circuit dismissed a post-judgment discovery order
- The Tenth Circuit on a functional notice of appeal
- A potential finality trap in the Tenth Circuit
- The Fourth Circuit on appealing dismissals without prejudice
Oral argument in Nasrallah v. Barr
The Supreme Court heard argument in Nasrallah v. Barr. The case asks if the courts of appeals have jurisdiction to review factual findings underlying a denial of relief under the Convention Against Torture. For more on the issue in Nasrallah, see my post on the cert petition—New Cert Petition on Scope of Appellate Review in Convention Against Torture Cases—and Jennifer Chacon’s argument preview for SCOTUSBlog. Jennifer Chacon’s analysis of the argument is also available on SCOTUSBlog. The transcript of the argument is available on the Supreme Court’s website, and Oyez has the argument audio synced to the transcript.
The Fourth Circuit deepened the split on the scope of remand appeals
In Mayor and City Council of Baltimore v. BP P.L.C., the Fourth Circuit held that Baltimore’s climate-change lawsuit against oil and gas companies must proceed in state (not federal) court. The court also deepened an existing split on the scope of remand appeals under 28 U.S.C. § 1447(d). That statute generally prohibits review of decisions remanding a case to state court. But the statute includes two exemptions to that prohibition—when removal was based on the federal-officer removal statute or the civil-rights removal statute.
The Fourth Circuit held that the scope of remand appeals is limited to the express exemptions to § 1447(d). That is, the court of appeals can address only whether removal was proper under the federal-officer or civil-rights removal statutes; the court lacks jurisdiction to review any other ground for removal. Other courts disagree. Focusing on § 1447(d)’s reference to appeals from a remand “order,” these courts have held that the scope of appeal includes every aspect of the district court’s order.
See full coverage at this post: A Deepened Split on the Scope of Remand Appeals.
Mayor and City Council of Baltimore v. BP P.L.C., 2020 WL 1069444 (4th Cir. Mar. 6, 2020), available at the Fourth Circuit and Westlaw.
The Eleventh Circuit on the timing and content of notices of appeal
In Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Co., the Eleventh Circuit navigated several potential errors in the timing and contents of notices of appeal. For two groups of plaintiffs, the district court dismissed their complaints but then improperly accepted late-filed amended complaints. Those amended complaints were a nullity—the dismissals became final once the time for amending had passed—and the plaintiffs failed to timely appeal from the original dismissal. Another group’s notice of appeal did not specify the district court decision that dismissed their antitrust claims. That group of plaintiffs instead designated the district court’s denial of reconsideration and its final judgment. Fortunately for them, the Eleventh Circuit held that designating the final judgment was sufficient to appeal all decisions that merged into the final one.
See full coverage at this post: Notices of Appeal in the Auto Body Antitrust Litigation
Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Co., 2020 WL 1074420 (11th Cir. Mar. 6, 2020), available at the Eleventh Circuit and Westlaw.
The Sixth Circuit on appealing First Step Act sentence-reduction denials
In United States v. Butler, the Sixth Circuit held that it lacked jurisdiction to review the procedural reasonableness of a refusal to reduce a sentence under the First Step Act.
The defendant in Butler had been convicted of possession (with intent) of crack cocaine. He later moved to reduce his 240-month sentence under the First Step Act. (The First Step Act made retroactive the Fair Sentencing Act’s provisions on reducing sentences due to the crack/powdered cocaine disparity.) The district court concluded that the defendant was eligible for a sentence reduction but exercised its discretion to not reduce the sentence. The defendant then appealed.
The Sixth Circuit dismissed the appeal for lack of jurisdiction. Under 18 U.S.C. § 3742(a)(1), courts of appeals can review criminal sentences that were “imposed in violation of law.” The defendant in Butler argued that the district court had erred by not explaining why his original sentence was necessary. That is, the defendant argued that the sentence was procedurally unreasonable. The Sixth Circuit has held, however, that procedural-unreasonableness errors do not result in a sentence imposed in violation of law. So the court lacked jurisdiction to review the defendant’s sentence.
According to the Sixth Circuit Blog, the Sixth Circuit stands alone in holding that it lacks jurisdiction in these circumstances.
United States v. Butler, 2020 WL 1074722 (6th Cir. Mar. 6, 2020), available at the Sixth Circuit and Westlaw.
The Federal Circuit dismissed a petition to review an agency’s letter threatening to suspend educational payments
In Ashford University, LLC v. Secretary of Veterans Affairs, the Federal Circuit held that a letter from the Department of Veterans Affairs about ceasing educational assistance was not a final agency action.
Ashford University involved educational assistance that the Department of Veterans Affairs provides to veterans. To receive assistance, a veteran must be enrolled in an approved course of education. The Department sent a letter to the plaintiff—an online university—stating that the plaintiff’s courses were not properly approved by a state approving agency. The Department accordingly intended to suspend educational-assistance payments for veterans taking courses with the university unless the university became properly approved.
The university then sought review in the Federal Circuit. But the court held that it lacked jurisdiction. For one thing, the letter was not a rulemaking or other reviewable action. For another, the letter was also not a “final agency action.” The Federal Circuit determined that the relevant statute providing for its review—38 U.S.C. § 502—requires finality. And the letter was “neither the ‘consummation’ of the [Department]’s decisionmaking process nor the ‘determin[ation]’ of ‘rights or obligations.’” Further steps, including a hearing, were required before payments to the university could be discontinued.
Ashford University, LLC v. Secretary of Veterans Affairs, 2020 WL 1017621 (Fed. Cir. Mar. 3, 2020), available at the Federal Circuit and Westlaw.
The week’s improper qualified-immunity appeals
Highlighting jurisdictionally improper qualified-immunity appeals is becoming a regular feature of these weekly roundups. (For an overview of the problem these appeals present, see my post Another Unnecessary Qualified-Immunity Appeal.) Last week saw at least two of them.
First, in Gallmon v. Cooper, the Fourth Circuit dismissed a qualified-immunity appeal because the defendants failed to take as true the version of the facts that the district court had assumed. Gallmon involved a police officer’s shooting of a motorist. The parties disputed where the plaintiff’s car was when the officer fired. The officer claimed that he feared that the car would hit him at the time, while the plaintiff claimed that his car had passed the officer and posed no danger to him. The district court denied the officer’s request for immunity, concluding that genuine fact issues existed “as to whether the danger had passed when [the officer] fired at the [the car]’s side door and window.” On appeal, the officer disputed the district court’s determination that genuine fact issues existed. But the Fourth Circuit had no jurisdiction to address that argument. And contrary to the officer’s arguments on appeal, a video of the shooting did not indisputably support the officer’s version of the facts.
Second, in Canada v. Beitler, the Ninth Circuit dismissed part of a qualified-immunity appeal because the defendants challenged the district court’s factual assumptions. Canada involved a prisoner’s Eighth Amendment failure-to-protect claim. The district court denied qualified immunity, as a reasonable jury could conclude that the defendants were subjectively aware of the risk of harm to the plaintiff. On appeal, the defendants challenged that determination. The Ninth Circuit dismissed that challenge in two sentences, noting that it lacked jurisdiction to review whether a genuine dispute of fact existed.
Gallmon v. Cooper, 2020 WL 1027672 (4th Cir. Mar. 3, 2020), available at the Fourth Circuit and Westlaw.
Canada v. Beitler, 2020 WL 1079502 (9th Cir. Mar. 6, 2020), available at the Ninth Circuit and Westlaw.
The Second Circuit dismissed a post-judgment discovery order
In Mirlis v. Greer, the Second Circuit held that the denial of a protective order in a post-judgment enforcement proceeding was not final.
Mirlis involved a judgment creditor’s attempts to collect on a judgment. The district court entered two relevant orders. First, it ordered that the debtor make weekly payments to the creditor. Second, the district court denied the debtor’s request for a protective order that would have prohibited the creditor from discovering the debtor’s assets, liabilities, and other matters not currently subject to the creditor’s writ of execution. The debtor then attempted to appeal both decisions.
Appellate jurisdiction over the weekly payments order was solid. But post-judgment discovery orders are normally not final or appealable. (See pages 393–400 of my article Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction for more on how courts pragmatically approach appeals in post-judgment proceedings.) In support of appellate jurisdiction, the debtor invoked both the collateral-order doctrine and pendant appellate jurisdiction.
The Second Circuit rejected both arguments. As to the collateral-order doctrine, the denial of the protective order was not effectively unreviewable on appeal from a final judgment. Discovery orders are normally appealable after a final judgment. And if a party really wants to immediately appeal a discovery order, it can refuse to comply, be held in contempt, appeal the contempt order, and obtain review of the discovery order as part of the contempt appeal.
As for pendent appellate jurisdiction, the Second Circuit held that the denial of the protective order was not “inextricably intertwined” with the payment order. The orders involved distinct facts and legal issues, with little overlap between them. And resolving the payment order did not necessarily resolve any issues with the denial of the protective order.
Mirlis v. Greer, 2020 WL 1024943 (2d Cir. Mar. 3, 2020), available at the Second Circuit and Westlaw.
The Tenth Circuit on a functional notice of appeal
In Blair v. Raemisch, the Tenth Circuit held that a prisoner’s response to an order to show cause qualified as a functional notice of appeal and was effective to appeal an amended judgment.
The plaintiff in Blair followed a Buddhist vegan diet. But prison officials, he alleged, refused to serve him a proper food. He was instead served a diet entirely of rice and beans, which was later changed to a regular diet of “nutra loaf”—a “vegan patty” made up of “left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked.” The plaintiff brought a variety of constitutional claims and a claim under the Religious Land Use and Institutionalized Persons Act. A magistrate judge recommended dismissing all of his claims. The district court abided. But the district court did so before it had received the plaintiff’s objections to the magistrate judge’s report and recommendation. The plaintiff then filed a notice of appeal and sought reconsideration. The district court denied reconsideration, and the plaintiff pursued his appeal in the Tenth Circuit.
There was an issue, however, as to whether the court of appeals had jurisdiction to review the district court’s reconsideration decision. Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires that an appellant file a new or amended notice of appeal after the entry of an amended judgment if that appellant wants to appeal that amended judgment. The plaintiff in Blair’s only notice came after the initial judgment. But another document the plaintiff filed—his response to an order to show cause as to whether he had waived an argument—was the functional equivalent of a notice of appeal. “To qualify as a functional notice of appeal, a party’s filing must provide notice of the party taking the appeal, the judgment or order appealed from, and the court to which the appeal is taken.” And the plaintiff’s response to the show-cause order did all of those things. The Tenth Circuit accordingly held that it had jurisdiction to review the amended judgment.
On the merits, the Tenth Circuit affirmed most of the dismissal. But it reversed on the plaintiff’s First Amendment and Religious Land Use and Institutionalized Persons Act claims that concerned the “nutra loaf.”
Blair v. Raemisch, 2020 WL 995727 (10th Cir. Mar. 2, 2020), available at the Tenth Circuit and Westlaw.
A potential finality trap in the Tenth Circuit
In Bramhall v. Salt Lake District Attorney’s Office, the Tenth Circuit dismissed an appeal because the complaint had been dismissed without prejudice. But in doing so, the court might have created something like a finality trap for a pro se litigant.
The plaintiff in Bramhall sued a variety of defendants, and the district court eventually dismissed all claims against them. The plaintiff then sought leave to amend his complaint. The district court denied that motion, concluding that the amendment would be futile because it did not cure the original complaint’s defects. But the district court added that the plaintiff “may still pursue his claims in an appropriate manner if he is able to allege sufficient facts to state a plausible claim for relief.” The plaintiff then appealed.
The Tenth Circuit held that it lacked jurisdiction. Dismissals without prejudice are often not final decisions. And the dismissal in Bramhall was expressly without prejudice and with an invitation for the plaintiff to continue pursuing his claims. The plaintiff was thus not excluded from federal court, and he could “still pursue his claims in an appropriate manner if he is able to allege sufficient facts to state a plausible claim for relief.”
The court might have overlooked a problem in reaching the decision it did. By trying (and failing) to amend his complaint and then pursuing his appeal, it appeared as though the plaintiff intended to stand on his filings. Were there any uncertainty about his intentions, the court could have sought clarification through briefing. And the dismissal of this appeal might leave the plaintiff with no opportunity to appeal the district court’s dismissal of his first complaint and rejection of his amended complaint. As the Tenth Circuit noted in a footnote, the plaintiff took the district court’s instructions to mean that he should file a second, separate action. If the district court dismisses his complaint in this second action, there will probably be some procedural tangles—perhaps insurmountable ones—in securing review of the first district court’s decision.
Bramhall v. Salt Lake District Attorney’s Office, 2020 WL 1046596 (10th Cir. Mar. 4, 2020), available at the Tenth Circuit and Westlaw.
The Fourth Circuit on appealing dismissals without prejudice
Speaking of dismissals without prejudice, the Fourth Circuit held in Campbell v. McCarthy that a dismissal without prejudice was final and appealable when the plaintiff could do nothing to cure the complaint’s defect. Campbell involved a whistleblower claim (and some other claims) against the Army. The plaintiff’s whistleblower claim was dismissed without prejudice due to failure to exhaust his administrative remedies. But this dismissal did not preclude an appeal. The plaintiff could not “cure his failure to exhaust administrative remedies for the Whistleblower claim by amending his complaint.” The Fourth Circuit accordingly had jurisdiction to review the dismissal.
On the merits, the Fourth Circuit held that the district court lacked jurisdiction to adjudicate the plaintiff’s claims.
Campbell v. McCarthy, 2020 WL 1060480 (4th Cir. Mar. 5, 2020), available at the Fourth Circuit and Westlaw.