Frivolous qualified-immunity appeals, resetting the appeal deadline for collateral-order appeals, improper remands for lack of jurisdiction, and more.
April 1, 2021
Last week saw a rare pushback against fact-based qualified-immunity appeals. Those appeals are both frivolous and common. Sanctions are rare. But the Sixth Circuit ordered some defendants to show cause as to why they should not be sanctioned for challenging the factual basis for an immunity denial. In other decisions, the Fifth Circuit applied Federal Rule of Appellate Procedure 4(a)(4) to appeals under the collateral-order doctrine. The Ninth Circuit reversed a remand order because the district court never allowed the defendant to establish the amount in controversy. And the Ninth Circuit noted that it will now hear immediate appeals from denials of Nevada’s anti-SLAPP motions. There are also several recent cert-stage developments of note involving preserving issues through denied summary-judgment motions, appealing denials of the state-action-antitrust defense, and the application of Hall v. Hall to pre-Hall judgments. Plus administrative remands, FOIA appeals, and the finality of dismissals without prejudice.
- The Sixth Circuit on Fact-Based Qualified-Immunity Appeals & Sanctions
- The Fifth Circuit on Resetting the Appeal Deadline for Collateral-Order Appeals
- The Ninth Circuit Reviewed and Reversed an Order Remanding to State Court Without a Chance to Show the Amount in Controversy
- The Ninth Circuit on Appealing Denials of Nevada’s Anti-SLAPP Motion
- Lots of Cert-Stage Briefing
- Quick Notes
The Sixth Circuit on Fact-Based Qualified-Immunity Appeals & Sanctions
Fact-based qualified-immunity appeals—that is, appeals from the denial of immunity in which a defendant challenges the factual basis for the immunity denial—are a problem in the courts of appeals. With rare and narrow exceptions, the courts of appeals lack jurisdiction over these appeals. Defendants nevertheless take these appeals with some frequency, adding wholly unnecessary complexity, expense, and delay to civil-rights litigation. The courts of appeals have not done enough to deter these appeals. And I argued in a recent essay that courts should start sanctioning defendants who take them. (You can read a draft of the essay at SSRN; comments are welcome.) Perhaps that would finally deter this abuse of qualified-immunity appeals.
Sanctions have been rare. But in last week’s Howlett v. City of Warren, the Sixth Circuit indicated that they might be appropriate. When the defendants in Howlett appealed from an order that (among other things) denied qualified immunity, a question arose as to the Sixth Circuit’s jurisdiction. In postponing a decision on a motion to dismiss the appeal, the court warned the defendants of the limits on its interlocutory jurisdiction. The defendants nevertheless appealed to challenge the factual basis for district court’s immunity denial. The Sixth Circuit accordingly dismissed the appeal. The court also ordered the defendants to show cause as to why the court should not sanction them.
Defendants should not need a reminder of this limit on the scope of qualified-immunity appeals. After all, the Supreme Court case establishing this limit is over 25 years old. Hopefully Howlett will dispel any lingering uncertainty and deter some future abuses of qualified-immunity appeals.
For more on Howlett, see my post The Sixth Circuit & Sanctioning Qualified-Immunity Appeals.
The Fifth Circuit on Resetting the Appeal Deadline for Collateral-Order Appeals
Civil litigants normally have 30 days after the district court’s final judgment to file their notice of appeal. But several kinds of motions—like those for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), to alter or amend the judgment under Rule 59, or for relief under Rule 60—can reset that 30-day deadline. Federal Rule of Appellate Procedure 4(a)(4) says that these motions stop the appeal clock, which restarts once the district court disposes of the last motion. To reset that clock, however, most of these motions must be filed within 28 days of the judgment.
The motions listed in Rule 4(a)(4) are largely, if not entirely, post-judgment motions. But in Frew v. Young, the Fifth Circuit applied Rule 4(a)(4) to an appeal under the collateral-order doctrine. The district court denied an award of attorneys’ fees in its supervision of a consent decree. The plaintiffs then moved for reconsideration 30 days later—within the time to file a notice of appeal, but 2 days later than allowed for any of the motions listed in Rule 4(a)(4). The Fifth Circuit said that this was too late to reset the appeal deadline. Whether regarded as a motion under Rule 54(d), 59(e), or 60, the plaintiffs had at most 28 days to file their motion. With no timely motion, the notice of appeal—filed shortly after the district court denied reconsideration—was untimely as to the initial fee decision.
I’m not too sure about Frew. Again, the motions in Rule 4(a)(4) are post-judgment motions. So the rules for those motions—including the time limits on their filing—wouldn’t seem to apply to motions for reconsideration filed after an interlocutory decision, even one deemed “final” under the collateral-order doctrine. That means no rule expressly governs how these other motions for reconsideration affect the appeal deadline. What’s left is the longstanding practice of saying that a motion for reconsideration that is filed within the time to appeal resets the deadline for an appeal, interlocutory or otherwise. Granted, that means you get two extra days to seek reconsideration of interlocutory decisions. But the lack of any rules expressly governing these sorts of motions and appeals should weigh in favor of some leniency.
For more on Frew and resetting the appeal clock for interlocutory appeals, see my post The Fifth Circuit on Resetting Appeal Deadlines in Collateral-Order Appeals.
Frew v. Young, 2021 WL 1153007 (5th Cir. Mar. 26, 2021), available at the Fifth Circuit and Westlaw.
The Ninth Circuit Reviewed and Reversed an Order Remanding to State Court Without a Chance to Show the Amount in Controversy
28 U.S.C. § 1447(d) generally bars review of district court orders remanding a case to state court. But only certain kinds of remands fall under § 1447(d)’s bar. Last week, in Academy of Country Music v. Continental Casualty Co., the Ninth Circuit held that § 1447(d) did not apply when the district court had not given the defendant a chance to establish the amount in controversy for purposes of diversity jurisdiction. The notice of removal itself did not need to prove that amount, and the district court needed to give the defendant an opportunity to show it. So the remand—though ostensibly for a lack of subject-matter jurisdiction—was not a “colorable” jurisdictional remand. The Ninth Circuit could review it despite § 1447(d).
For more on Academy of Country Music, see my post Jurisdictional Remands and the Amount in Controversy.
Academy of Country Music v. Continental Casualty Co., 2021 WL 1082850 (9th Cir. Mar. 22, 2021), available at the Ninth Circuit and Westlaw.
The Ninth Circuit on Appealing Denials of Nevada’s Anti-SLAPP Motion
In Wynn v. Bloom, the Ninth Circuit said that it can now hear immediate appeals from the denial of anti-SLAPP motions brought under Nevada’s anti-SLAPP statute.
That Ninth Circuit had previously held that parties could not appeal from the denial of these motions. At that time, Nevada’s anti-SLAPP law did not provide an immediate appeal or an immunity from suit. So denials of anti-SLAPP motions under Nevada law did not satisfy the collateral-order doctrine.
But Nevada subsequently amended its anti-SLAPP law to provide for both an immunity from suit and a right to immediate appeal. Wynn noted that this statutory change abrogated the Ninth Circuit’s earlier decision on appeals involving Nevada’s anti-SLAPP law.
Wynn v. Bloom, 2021 WL 1149142 (9th Cir. Mar. 25, 2021), available at the Ninth Circuit and Westlaw.
Lots of Cert-Stage Briefing
Several cert-stage briefs were filed in cases I’ve been following.
Ericsson & “Appealing” Summary-Judgment Denials
The respondent in Ericsson Inc. v. TCL Communication Technology Holdings Ltd. filed its opposition brief.
The case asks if a denied motion for summary judgment preserves purely legal issues after a trial on the merits. The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal. And that’s an issue on which the courts have split.
The Supreme Court will consider the petition at its conference on April 23, 2021. You can read more about the petition and the split on preservation via summary-judgment denials at my post New Cert Petition on “Appealing” Summary-Judgment Denials.
Brief in Opposition, Ericsson Inc. v. TCL Communication Technology Holdings Ltd., No. 20-1130 (Mar. 17, 2021), available at the Supreme Court and Westlaw
Louisiana Real Estate Appraisers & Antitrust State-Action Appeals
The parties in Louisiana Real Estate Appraisers Board v. FTC filed their opposition and reply briefs.
The case asks if litigants can immediately appeal from the denial of antitrust’s state-action defense, which is sometimes called Parker immunity. The Supreme Court was set to resolve this issue a few years ago in Salt River Project v. Tesla Energy Operations. But that case settled before argument.
The case is scheduled for the Supreme Court’s conference today, April 1, 2021. For more on state-action-immunity appeals, see my post on the Eleventh Circuit’s recent split decision on the issue, The Eleventh Circuit Divided Over State-Action Appeals, which the Eleventh Circuit recently reheard en banc.
Brief for the Respondent in Opposition, Louisiana Real Estate Appraisers Board v. FTC, No. 20-1018 (Mar. 16, 2021), available at the Supreme Court and Westlaw.
Reply Brief for the Petitioner, Louisiana Real Estate Appraisers Board v. FTC, No. 20-1018 (Mar. 16, 2021), available at the Supreme Court and Westlaw.
Haynes & Post-Hall Appeals From Pre-Hall Judgments
The respondent in Haynes v. World Wrestling Entertainment, Inc. filed its opposition brief.
The case concerns the effect of the Supreme Court’s decision in Hall v. Hall, which held that actions consolidated with other actions retain their independent character. That means the resolution of one action is final and appealable, regardless of whether the other actions remain pending. The case asks what to do with pre-Hall judgments that were not immediately appealable under then-applicable circuit law. The petitioner in Haynes waited to appeal the resolution of two actions—which were resolved before Hall—until after the district court had resolved all consolidated actions—which happened after Hall. The Second Circuit held that this appeal was too late.
The case is not yet scheduled for conference. You can read more about the Second Circuit’s decision in Haynes in my post Post-Hall Appeals From Pre-Hall Judgments.
Brief in Opposition to Petition for a Writ of Certiorari, Haynes v. World Wrestling Entertainment, Inc., No. 20-1169 (Mar. 18, 2021), available at the Supreme Court and Westlaw
Quick Notes
In D.O. ex rel Walker v. Escondido Union School District, the Ninth Circuit held that an administrative decision on remand from a district court did not make the district court’s decision final without some further action in the district court.
D.O. involved a student’s claims against a school district for failing to provide him a free and appropriate public education under the Individuals with Disabilities Education Act. The dispute started before a state administrative agency, which dismissed the student’s claims. A federal district court reversed and remanded. On remand, the student sought reimbursement for out-of-pocket expenses and an order that the school district implement certain training. The administrative judge ordered only reimbursement. The school district then appealed to the Ninth Circuit.
The Ninth Circuit dismissed the appeal. The district court’s initial decision was not final. It had remanded for further proceedings, and those proceedings were not ministerial or technical (which might have made the decision final). And the district court’s decision did not become final when the state agency acted on remand. The parties instead needed to return to the district court, which could resolve all issues and render a final judgment.
D.O. ex rel Walker v. Escondido Union School District, 2021 WL 1157916 (9th Cir. Mar. 26, 2021), available at the Ninth Circuit and Westlaw.
In White v. FBI, the Seventh Circuit determined that it could review a decision refusing to order the FBI to accelerate its production of documents under a Freedom of Information Act request.
The plaintiff in White sought about 55,000 pages of documents from the FBI, and the FBI agreed to produce 500 pages each month. (The FBI apparently has a policy limiting the rate of FOIA production: “an analyst must review each document line by line before release, and its release policy prevents one requester from consuming inordinate resources to the detriment of other requesters.”) A district court ruled that 500 pages/month was adequate, and the plaintiff appealed.
The Seventh Circuit had jurisdiction via 28 U.S.C. § 1292(a)(1), as the plaintiff had sought injunctive relief under 5 U.S.C. § 552(a)(4)(B). The court also rejected the FBI’s arguments against appellate jurisdiction. The FBI first argued that the Seventh Circuit could not review a denial of a preliminary injunction unless the appellant faces irreparable harm. But that standard, the Seventh Circuit explained, would make jurisdiction turn on the merits of the injunction decision. The FBI also argued that the plaintiff could obtain the relief he sought—faster production—by narrowing his FOIA requests. But that would require the plaintiff to seek different relief—fewer documents than he wanted—not the relief he sought.
White v. FBI, 2021 WL 1118087 (7th Cir. Mar. 24, 2021), available at the Seventh Circuit and Westlaw.
And in Smith v. Dobin, the Third Circuit determined that it had jurisdiction despite the district court’s dismissing some claims without prejudice. The district court dismissed some of the Smith plaintiff’s claims for insufficient service of process. But the district court did not allow the plaintiff to fix the deficient service. It instead ordered the clerk to close the case. The Third Circuit concluded that the district court’s resolution of the case was final—“the District Court dismissed the entire action and the case is over as far as the District Court is concerned.”
Smith v. Dobin, 2021 WL 1103534 (3d Cir. Mar. 23, 2021), available at the Third Circuit and Westlaw.