Order designations in notices of appeal, stay-put orders in IDEA cases, qualified immunity, government appeals in criminal cases, and more.
April 6, 2022
Last week saw lots of interesting decisions. Two cases implicated the recent amendments to Federal Rule of Appellate Procedure 3(c)’s order-designation requirement, though only one court of appeals seemed to realize as much. The First Circuit held that stay-put orders in IDEA cases are immediately appealable via the collateral-order doctrine. Several courts dealt with the general bar on reviewing the factual basis for a qualified-immunity denial. Two of those decisions addressed improper attempts to challenge those facts, while another invoked the blatant-contradiction exception to the general rule. Another qualified-immunity appeal came from the refusal to amend a pretrial order that had included a particular claim among those to be tried. In other decisions, the Fifth Circuit reviewed evidentiary decisions in an interlocutory prosecution appeal. That court also used mandamus to order a district court to request that a case be re-transferred back to the district court. Plus appeals of remand orders under CAFA’s local-controversy exception, denials of immunity under the International Organizations Immunities Act, appealing a favorable judgment, duty-to-defend decisions as appealable injunctions, changing without-prejudice dismissals on appeal, and appeals by non-parties.
- Do the Rule 3(c) Amendments Apply to Pending Cases?
- The First Circuit Held That Stay-Put Orders in IDEA Cases Are Immediately Appealable
- The Week’s Fact-Based Qualified-Immunity Appeals
- The Fifth Circuit on an Effective Denial of Qualified Immunity
- Blatant Contradictions & Municipal Piggybacking
- The Fifth Circuit Heard the Government’s Interlocutory Appeal Challenging Evidentiary Decisions in a Criminal Case
- The Fifth Circuit Used Mandamus to Try to Undo a Transfer Order
- Quick Notes
Do the Rule 3(c) Amendments Apply to Pending Cases?
The Supreme Court recently amended Federal Rule of Appellate Procedure 3(c). Before these amendments, several courts of appeals had used Rule 3(c)‘s order-designation requirement to limit the scope of an appeal. The amendments—which were a necessary fix to a bad misreading of Rule 3(c)—became effective December 1, 2021. The Supreme Court’s order adopting the amendments said that the new rule would “govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Last week, two cases implicated the amendments’ application to pending cases.
The Eighth Circuit Overlooked the Amendments
The Eighth Circuit was one of the courts that had used Rule 3(c) to limit the scope of appeals. Indeed, in Neal Katyal and Sean Marotta’s letter asking the Advisory Committee on Appellate Rules to look into the issue, they focused on the Eight Circuit’s caselaw. But in Gustafson v. Bi-State Development Agency, the Eighth Circuit again said that designating one interlocutory order in a notice of appeal bars review of other interlocutory orders. The decision never mentioned the revisions to Rule 3(c). To be fair, the case was appealed before the new Rule 3(c) became effective, and the parties don’t appear to have raised the issue. Perhaps the Eighth Circuit did not think it was “just and practicable” to apply the amended rule to a pending case. More likely, the court simply overlooked the change.
For more on Gustafson, see my post Are the Rule 3(c) Amendments Retroactive?.
Gustafson v. Bi-State Development Agency, 2022 WL 893008 (8th Cir. Mar. 28, 2022), available at the Eighth Circuit and Westlaw.
The First Circuit Applied the Amendments
The First Circuit, in contrast, applied the amendments without any discussion of retroactivity. In Rivera v. Kress Stores of Puerto Rico, the court of appeals said that it could review the dismissal of some claims even though the plaintiff had not designated those claims in her notice of appeal.
Simplifying a bit, the plaintiff in Rivera sued a retail store and one of its employees. The district court dismissed the claims against the store for forum non conveniens. It then denied the employee’s motion to dismiss as moot.
The plaintiff appealed. In her notice of appeal, the plaintiff did not specifically designate the district court’s decision on the employee’s motion to dismiss. The defendants then argued that this exclusion deprived the First Circuit of jurisdiction to review the denial of the employee’s motion to dismiss as moot.
The court of appeals rejected this argument. The plaintiff had designated the district court’s dispositive order that addressed both defendants’ motions. No more was required. Indeed, had the plaintiff wanted to limit the appeal to the part of the order addressing the store’s motion, the new Rule 3(c)(6) requires that she specifically say so. And the new Rule 3(c)(4) and (5) provide that, “even were the rulings on each motion considered separate orders, the notice of appeal encompassed the final judgment, and thus, appellate jurisdiction existed over all orders that merged into that judgment.” The First Circuit accordingly “reject[ed] the defendants’ threadbare attempts to shield the district court’s decision to deny [the employee]’s motion as moot.”
Rivera v. Kress Stores of Puerto Rico, 2022 WL 909053 (1st Cir. Mar. 29, 2022), available at the First Circuit and Westlaw.
The First Circuit Held That Stay-Put Orders in IDEA Cases Are Immediately Appealable
In Doe v. Portland School District, the First Circuit held that a school district could immediately appeal from a IDEA stay-put order via the collateral-order doctrine.
Doe involved a dispute over the appropriateness of a child’s education plan under the Individuals with Disabilities Education Act. The school district had initially—and wrongly—determined that the child was not eligible for special education services. A hearing officer accordingly ordered the school district to reimburse the child’s parents for the costs of private schooling. But the hearing officer also determined that the school district eventually developed an appropriate education plan. So the school district would not have to pay for private schooling going forward. The parents sought review of this latter decision in a federal district court. And the district court ordered that the child remain in his private school pending resolution of the suit under the IDEA’s stay-put provision. The school district then appealed.
The First Circuit held that it had jurisdiction over the appeal under the collateral-order doctrine. Under that doctrine, district court orders are final when they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The stay-put order conclusively determined whether the child would remain in private school during litigation. It resolved an important issue—the child’s temporary placement—that was independent of the merits—the child’s permanent placement. And the stay-put order would not be reviewable later. (The First Circuit didn’t explain that last point, but it might have had something to do with there being no expectation that the parents would reimburse the school for the costs of private schooling.) In so holding, the First Circuit joined at least four other courts of appeals.
Doe v. Portland School District, 2022 WL 909048 (1st Cir. Mar. 29, 2022), available at the First Circuit and Westlaw.
The Week’s Fact-Based Qualified-Immunity Appeals
Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited when the district court denies immunity at summary judgment. 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 normally 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 two examples of these improper fact-based appeals.
Bayon v. Berkebile
Bayon v. Berkebile involved a non-fatal shooting after a car chase. According to the district court, a reasonable jury could find that the plaintiff was subdued and complying with police officers’ orders when the officers shot him. The district court accordingly denied the officers’ request for qualified immunity.
The officers nevertheless appealed. And in that appeal, the officers presented their own version of events. They argued that the plaintiff was not compliant, that he walked aggressively towards the officers, that he reached for his waistband, and that there was a black object in his waistband. The Seventh Circuit lacked jurisdiction to address any of these factual challenges. The court accordingly dismissed the appeal.
Bayon v. Berkebile, 2022 WL 895979 (7th Cir. Mar. 28, 2022), available at the Seventh Circuit and Westlaw.
Murray v. Department of Corrections
Murray v. Department of Corrections involved Eighth Amendment claims for inadequate medical treatment against a prison doctor. The plaintiff was treated for deep-vein thrombosis while incarcerated. And according to the district court, a reasonable jury could find that the defendant doctor was aware of the plaintiff’s condition, not regularly monitoring the plaintiff’s treatment, and not adjusting that treatment to appropriate levels. The district court accordingly denied the doctor’s request for qualified immunity.
In the subsequent appeal, the doctor argued that he was not aware of the plaintiff’s condition. The Sixth Circuit noted that it could not consider this argument, as its jurisdiction over the qualified-immunity appeal required accepting the plaintiff’s version of events.
Murray v. Department of Corrections, 2022 WL 946294 (Mar. 30, 2022), available at the Sixth Circuit and Westlaw.
The Fifth Circuit on an Effective Denial of Qualified Immunity
In Bourne v. Gunnels, the Fifth Circuit allowed defendants in a civil-rights action to appeal from a pretrial order that included some failure-to-intervene claims among the issues for trial.
The plaintiff in Bourne sued several prison officials for (among other things) excessive force and failure to intervene. The district court initially dismissed the excessive-force claims. It also granted the defendants’ request for qualified immunity on the failure-to-intervene claims, as there could be no failure to intervene if there was no excessive force. The plaintiff appealed the dismissal of the excessive-force claims, and the Fifth Circuit reversed. Back in the district court, a pretrial order included the failure-to-intervene among those set for trial. After initially agreeing to this order, the defendants later objected to it. The district court refused to amend the pretrial order. The defendants then appealed.
The Fifth Circuit held that it had jurisdiction. Denials of qualified immunity, the court noted, are immediately appealable. And refusal to amend the pretrial order effectively denied qualified immunity. The district court had granted the defendants’ qualified immunity on the failure-to-intervene claims. The plaintiff had not appealed that decision—he appealed only the dismissal of his excessive-force claims. Putting the failure-to-intervene claims back in the case thus denied immunity.
There are at least two problems with this analysis. First, it marks yet another opportunity for defendants to appeal from the denial of qualified immunity. Courts seem willing to give defendants almost every opportunity to pause litigation and appeal from the purported denial of immunity. These constant opportunities for interruption serve no legitimate purpose. Second, the appeal did not raise any qualified-immunity issues. The only question on appeal was whether the plaintiff’s failure-to-intervene claims were barred by waiver or law of the case. The appeal had nothing to do with the existence or clarity of a constitutional violation. So the Fifth Circuit allowed another qualified-immunity appeal that served none of the purposes that supposedly underlie those appeals.
Bourne v. Gunnels, 2022 WL 963979 (5th Cir. Mar. 30, 2022), available at CourtListener and Westlaw.
Blatant Contradictions & Municipal Piggybacking
In Heard v. Dulayev, the Tenth Circuit dealt with two nuances of qualified-immunity appeals.
First, the court applied the blatant-contradiction exception to the general bar on reviewing the genuineness of fact disputes. As just discussed, courts of appeals normally cannot review the district court’s determination of what a reasonable jury could find. An exception to that general rule exists when something in the summary-judgment record blatantly contradicts that determination.
In Heard, the district court thought that a reasonable jury could find that the plaintiff never had a chance to surrender peacefully before being Tased. But the Tenth Circuit said that a video of the events “blatantly contradicted” this. The video “clearly show[ed] that [the plaintiff] had an opportunity to surrender before he took . . . additional steps in the direction of” the officer.
Second, the Tenth Circuit refused to extend pendent appellate jurisdiction to a municipal defendant’s appeal. Municipalities regularly try to piggyback on individual defendants’ qualified-immunity appeals. And most courts of appeals will allow municipalities to do so if resolution of the qualified-immunity appeal necessarily resolves any municipal-liability claim. This occurs when the court of appeals concludes that the individual defendants did not violate the constitution. With no constitutional violation, there’s nothing for the municipality to be liable for.
In Heard, the court of appeals reversed the denial of qualified immunity. But it did so only on the “clearly established law” prong. The Tenth Circuit accordingly did not address whether the officer violated the constitution. Because the officer’s appeal did not resolve the municipality’s liability, the Tenth Circuit declined to exercise pendent appellate jurisdiction over the municipal appeal.
Heard v. Dulayev, 2022 WL 905105 (10th Cir. Mar. 29, 2022), available at the Tenth Circuit and Westlaw.
The Fifth Circuit Heard the Government’s Interlocutory Appeal Challenging Evidentiary Decisions in a Criminal Case
In United States v. Williams, the Fifth Circuit reviewed (and ultimately affirmed) a district court’s interlocutory order excluding evidence under Federal Rules of Evidence 403 and 404 in a criminal prosecution.
As the Fifth Circuit noted, the appeal came via an awkward posture. The government appealed via 18 U.S.C. § 3731, which allows the government to immediately appeal “a decision or order of a district court suppressing or excluding evidence . . . in a criminal proceeding.” The government normally uses § 3731 to obtain immediate review of orders suppressing evidence or statements obtained in violation of the constitution. Those appeals “typically involve self-contained issues such as whether reasonable suspicion supported a traffic stop.”
Run-of-the-mill evidentiary issues, in contrast, are not so easy to review on an interlocutory basis:
[A]pplications of many of the Federal Rules of Evidence, especially Rules 403 and 404(b), “are usually predicated on a background of interwoven fact patterns, and the facts set out in the record, either in the indictment or affidavits accompanying the motion, are often insufficient to permit an informed decision.”
(Quoting Scott J. Shapiro, Note, Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings, 99 Yale L.J. 905, 912 (1990).) In other words, pretrial review of the evidentiary rulings—“which takes place without knowledge of the evidence or arguments on which the trial will turn”—was impaired:
Cases take shape and color at trial, where lawyers argue, witnesses testify, and jurors listen, observe, and react. Trial developments could make evidence that seemed irrelevant or marginally probative at the outset instead appear crucial for one purpose or another—such as impeaching a witness or discrediting a defense theory. What better place to answer questions about probative value, prejudice, jury confusion, or delay than at trial?
Indeed, the district court’s rulings were only tentative, acknowledging that trial developments could change them.
United States v. Williams, 2022 WL 907229 (5th Cir. Mar. 29, 2022), available at CourtListener and Westlaw.
The Fifth Circuit Used Mandamus to Try to Undo a Transfer Order
In Defense Distributed v. Buck, a split Fifth Circuit used mandamus to order a district court to ask another district court to re-transfer back to the first district court. The majority held that mandamus was an appropriate vehicle for directing the district court to make this request. Judge Higginson dissented, arguing that mandamus was not appropriate and the transfer order was correct.
Defense Distributed v. Buck, 2022 WL 984870 (5th Cir. Apr. 1, 2022), available at the Fifth Circuit and Westlaw.
Quick Notes
In Simring v. GreenSky, LLC, the Eleventh Circuit reviewed a remand order that was based on the Class Action Fairness Act’s local-controversy exception. 28 U.S.C. § 1447(d) generally bars appellate review of remand orders that (1) follow a timely motion pointing out a defect in removal or (2) are due to a lack of subject-matter jurisdiction. But the Eleventh Circuit has held that CAFA’s local-controversy exception is neither jurisdictional nor a procedural defect. It is instead “akin to abstention because it requires courts to decline jurisdiction that otherwise exists.” The remand was thus a final order under 28 U.S.C. § 1291. And the defendant did not need to obtain permission to appeal under 28 U.S.C. § 1453(c)(1).
Simring v. GreenSky, LLC, 2022 WL 894206 (11th Cir. Mar. 28, 2022), available at the Eleventh Circuit and Westlaw.
In Rodriguez v. Pan American Health Organization, the D.C. Circuit heard an appeal from the denial of immunity under the International Organizations Immunities Act. That act gives “designated international organizations the same immunity as foreign sovereigns” under the Foreign Sovereign Immunities Act. Since the denial of immunity under the Foreign Sovereign Immunities Act is immediately appealable via the collateral-order doctrine, the denial of immunity under the International Organizations Immunities Act is, too.
Rodriguez v. Pan American Health Organization, 2022 WL 904850 (D.C. Cir. Mar. 29, 2022), available at the D.C. Circuit and Westlaw.
In Lush v. Board of Trustees, the Seventh Circuit dismissed an appeal because the plaintiff had voluntarily dismissed his claims. Simplifying a bit, the district court in Lush denied the plaintiff’s request to appoint counsel. The plaintiff then voluntarily dismissed his complaint and tried to appeal the denial of appointed counsel. But the voluntary dismissal resulted in there being no judgment that was adverse to the plaintiff. He got exactly what he asked for: a dismissal. The Seventh Circuit accordingly lacked jurisdiction over the appeal.
Lush v. Board of Trustees, 2022 WL 906057 (7th Cir. Mar. 29, 2022), available at the Seventh Circuit and Westlaw.
In AIX Specialty Insurance Co. v. Everett, the Eleventh Circuit reviewed an interlocutory order requiring an insurance company to defend its insured. The district court had not yet determined whether the insurance company also had a duty to indemnify. But the Eleventh Circuit holds that a duty-to-defend order is sufficiently injunctive to be appealable via 28 U.S.C. § 1292(a)(1). “[T]he order effectively requires [the insurer] to pay [the insured]’s defense costs and thus sufficiently resembles an injunction.”
AIX Specialty Insurance Co. v. Everett, 2022 WL 950936 (11th Cir. Mar. 30, 2022), available at the Eleventh Circuit and Westlaw.
In Gaddis v. DeMattei, the Seventh Circuit held that an appellant implicitly converted a voluntary, without-prejudice dismissal to one with prejudice, thereby securing appellate jurisdiction. The plaintiff in Gaddis appealed after losing on some claims and then voluntarily dismissing her remaining claims without prejudice. When the Seventh Circuit questioned its jurisdiction, the plaintiff argued that the voluntary dismissal was effectively one with prejudice, as there was no possibility of refiling the dismissed claims in federal court. The Seventh Circuit—which allows appellants to convert a dismissal to one with prejudice in their appellate briefing or argument—determined that the plaintiff had essentially expressed a willingness to convert her voluntary dismissal to one with prejudice.
Gaddis v. DeMattei, 2022 WL 986440 (7th Cir. Apr. 1, 2022), available at the Seventh Circuit and Westlaw.
And in IT Certified USA, Inc. v. Min, the Second Circuit dismissed an appeal that was not brought by a named party. The case was a foreclosure action. And at some point during the litigation, the initial plaintiff had transferred the loan to another lender. But the second lender never moved to substitute itself as the plaintiff. So no named party appealed from the district court’s judgment in favor of the defendants. Without a named party in the notice of appeal, the Second Circuit lacked jurisdiction.
IT Certified USA, Inc. v. Min, 2022 WL 966927 (2d Cir. Mar. 31, 2022), available at CourtListener and Westlaw.