The Week in Federal Appellate Jurisdiction: March 8–14, 2020

A brief roundup this week, as there is much else to be done. The Seventh Circuit clarified that decisions striking class allegations can be appealed via Rule 23(f). The Fifth Circuit issued a questionable cumulative-finality decision. And courts continue to reject defendants’ improper qualified-immunity appeals (though no one seems to get sanctioned for taking these appeals).

• The Seventh Circuit on Rule 23(f) and striking class allegations
• The Fifth Circuit flubbed cumulative finality
• More improper qualified-immunity appeals

The Seventh Circuit on Rule 23(f) and striking class allegations

The Seventh Circuit’s decision in Mussat v. IQVIA, Inc. has received a lot of attention in civil procedure circles for its holding that the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court does not apply to nationwide class actions. Before reaching that issue, however, the Seventh Circuit clarified the availability of Rule 23(f) appeals when the district court strikes a class allegation.

Federal Rule of Civil Procedure 23(f) “permit[s] an appeal from an order granting or denying class-action certification under this rule.” The district court in Mussat had not specifically granted or denied class certification. It had instead struck the plaintiff’s class definition insofar as it sought to include people who had no contacts with Illinois. When the plaintiff sought permission to appeal under Rule 23(f), the defendant argued that no appeal was available under the rule. The district court had granted a motion to strike, not a motion for class certification, so any appeal needed to wait until after a final judgment.

The Seventh Circuit rejected this argument. The district court’s decision effectively denied certification of a nationwide class. Indeed, “[t]he cases are clear: Rule 23(f) grants the courts of appeals jurisdiction to hear interlocutory appeals of orders that expressly or as a functional matter resolve the question of class certification one way or the other.” And the availability of a narrower class—one including only those who had contacts with Illinois—did not change this analysis. Rule 23(f) appeals are not limited to decisions that deny class treatment entirely. The district court had refused to certify the class that the plaintiff wanted to represent, and that amounted to a denial of class certification.

Mussat v. IQVIA, Inc., 2020 WL 1161166 (7th Cir. Mar. 11, 2020), available at the Seventh Circuit and Westlaw.

The Fifth Circuit flubbed cumulative finality

In Striblin v. Killian, the Fifth Circuit held that the resolution of all claims in an action did not save a notice of appeal filed after only some of the claims had been resolved.

The plaintiff in Striblin—a prisoner in Texas—sued several defendants for violating his civil rights (the opinion contains no details about the plaintiff’s allegations). The district court initially dismissed some of the plaintiff’s claims. The plaintiff then filed a notice of appeal. Months later, the district court dismissed all of the claims. But the plaintiff did not file a second notice of appeal (or amend his first).

The Fifth Circuit held that it lacked jurisdiction over the appeal because the plaintiff did not file a proper notice. Citing its decision in United States v. Cooper, the court held that the “premature notice of appeal was not effective as to the subsequent final judgment because the notice of appeal followed a decision that was not immediately appealable.” The Fifth Circuit accordingly dismissed the appeal.

Striblin is an example of the cumulative-finality doctrine. And I see a few issues with the decision. First, it could have easily reached a different result on jurisdiction by relying on one of several other Fifth Circuit cases. As I wrote in my article Cumulative Finality, the Fifth Circuit’s cumulative finality caselaw is probably the worst among the circuits. It has a variety of decisions in this area with different, inconsistent rules on when subsequent events can save a premature notice of appeal. Second, the decision takes an unnecessarily strict approach to cumulative finality. There is little harm (if any) in allowing the subsequent resolution of all outstanding claims to save a notice of appeal filed after the resolution of only some claims. And the result—depriving parties of their right to appeal—is unnecessarily harsh.

Striblin v. Killian, 2020 WL 1156902 (5th Cir. Mar. 9, 2020), available at the Fifth Circuit and Westlaw.

More improper qualified-immunity appeals

Last week saw at least two improper qualified-immunity appeals.

In Amador v. Vasquez, the Fifth Circuit dismissed a qualified-immunity appeal in which the officers failed to accept the district court’s version of the facts as true for purposes of the appeal. Amador involved two police officers’ fatal shooting of a suspect. The decedent’s estate sued the officers for excessive force, and the officers sought qualified immunity. The district court rejected that request. It determined that a genuine factual dispute existed as to (among other things) what occurred in the moments leading up to the shooting. More specifically, the district court determined that a reasonable jury could conclude that the situation had deescalated at the time of the shooting:

It was only after [the decedent] was standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds that the officers looked at each other and then decided to shoot [the decedent].

The officers then appealed the denial of immunity.

But in that appeal, the officers refused to take as true the facts that the district court had concluded were supported by the record. That’s improper. In an interlocutory appeal from the denial of qualified immunity at summary judgment, the right to appeal is limited. The courts of appeals generally lack jurisdiction to address whether the summary-judgment record supports the version of facts that the district court took as true in denying immunity. Those courts can instead address only whether that version of the facts amounts to a clearly established violation of federal law.

The officers in Amador relied on their own version of the facts, though they purported to rely on a video of the shooting. That video, the Fifth Circuit held, did not blatantly contradict the facts that the district court had taken as true in denying immunity. And under those facts—the decedent “had raised both of his hands directly above his head with the knife ‘palmed’ in his left hand and raised his hands in apparent surrender, stood still, his hands were not moving, his feet were not moving, he was not moving or advancing toward the Deputies and no family members [or] neighbors were outside or in the vicinity”—the officers violated clearly established law.

Similarly, in Butler v. Pennington, the Fourth Circuit dismissed a qualified-immunity appeal insofar as it disputed the facts. The opinion is short on details. It involved a former assistant public defender’s claims that he was terminated in retaliation for protected speech. The Fourth Circuit held that it had jurisdiction to address only whether the right to report alleged prosecutorial misconduct was clearly established (it was). The court lacked jurisdiction over the rest of the defendant’s appeal, which sought “to challenge the district court’s determinations that genuine issues of material of fact existed as to whether [the defendant] was entitled to qualified immunity, and which the [district] court determined were issues appropriate for resolution by a trier of fact.”

Amador v. Vasquez, 2020 WL 1164357 (5th Cir. Mar. 11, 2020), available at the Fifth Circuit and Westlaw.

Butler v. Pennington, 2020 WL 1150145 (4th Cir. Mar. 10, 2020), available at the Fourth Circuit and Westlaw.