The Week in Federal Appellate Jurisdiction: May 10–16, 2020

Last week saw the en banc Fourth Circuit’s decisions on immediate appellate review of various decisions in an emoluments action. Another party fell into the Fifth Circuit’s finality trap, making me wonder whether that court actually made things worse in its recent en banc decision. Another defendant flouted the limits on the scope of qualified-immunity appeals. And the Ninth Circuit held that it lacks jurisdiction to address whether the Board of Immigration Appeals deviated from its “settled course of adjudication” in denying sua sponte reopening. Plus decisions on appealing dismissals without prejudice, orders requiring the government to pay an opposing party’s litigation expenses, and mid-term modifications of supervised release.

• The en banc Fourth Circuit denied mandamus in/dismissed its emoluments appeals
• Another party fell into the Fifth Circuit’s finality trap
• The Sixth Circuit rejected an improper qualified-immunity appeal
• The Ninth Circuit held that it lacks jurisdiction to review “settled course” arguments in immigration appeals
• The Third Circuit held that a merits decision was final despite outstanding issues regarding a filing injunction
• Quick notes

The en banc Fourth Circuit denied mandamus in/dismissed its emoluments appeals

The en banc Fourth Circuit issued two decisions last week addressing its jurisdiction to review interlocutory decisions in Maryland and the District of Columbia’s emoluments suit against Donald Trump.

Last summer, the Fourth Circuit took the extraordinary step of directing a district court—via a writ of mandamus—to certify a § 1292(b) appeal in an emoluments case. I suggested at the time that doing so was improper, and Alan Morrison provided a guest post on the decision. In a companion case, the Fourth Circuit also held that it could address absolute immunity in an immediate appeal, as the district court had delayed seven months in deciding the issue. (See either of the linked posts for background on this litigation and the panel opinions.)

The Fourth Circuit agreed to rehear both cases en banc. And the en banc court reversed both of the panel decisions.

In In re Trump—the mandamus/§ 1292(b) action—the court held that mandamus was not appropriate to direct the district court to certify its decision for an immediate appeal under 28 U.S.C. § 1292(b). Section 1292(b) requires that both the district court and court of appeals agree that an immediate appeal is proper. And those decisions are discretionary. This combination makes mandamus especially difficult:

It is always difficult to establish a “clear and indisputable” right to a decision that lies within a court’s discretion, but it is particularly problematic when doing so circumvents the specific process Congress has prescribed for seeking interlocutory review.

The court also rejected the argument that the district court was so wrong in its analysis that mandamus was necessary; an error alone does not warrant mandamus. And the court rejected the argument—urged by one of the dissenting opinions—that the district court had somehow tried to “insulate itself from appellate review.” That argument was nothing more than a disagreement about whether § 1292(b) certification was appropriate, and “[m]ere disagreement” with the district court’s decision does not suggest that the district court “usurped judicial power.”

The court did not hold, however, that mandamus could never issue to order a § 1292(b) certification:

If the district court ignored a request for certification, denied such a request based on nothing more than caprice, or made its decision in manifest bad faith, issuing the writ might well be appropriate.

But the district court here addressed certification “in a detailed written opinion that applied the correct legal standards.”

The court went on to hold that mandamus was not appropriate to direct the district court to dismiss the suit, reasoning that there was no clear and indisputable right to the dismissal.

In District of Columbia v. Trump—the absolute immunity appeal—the court held that the district court’s delay in adjudicating Trump’s motion to dismiss for absolute immunity did not effectively deny that motion. The district court did not expressly or implicitly decline to rule on the motion. And the district court’s delay was reasonable. Trump was accordingly not able to immediately appeal the denial of absolute immunity under the collateral-order doctrine.

Both decisions produced dissents; Judges Wilkinson and Niemeyer dissented in the mandamus/§ 1292(b) case, and and Judges Niemeyer and Richardson dissented in the absolute-immunity case.

Mandamus & § 1292(b): In re Trump, 2020 WL 2479139 (4th Cir. May 14, 2020) (en banc), available at the Fourth Circuit and Westlaw.

Absolute Immunity & the Collateral-Order Doctrine: District of Columbia v. Trump, 2020 WL 2479675 (4th Cir. May 14, 2020) (en banc), available at the Fourth Circuit and Westlaw.

Another party fell into the Fifth Circuit’s finality trap

In CBX Resources, L.L.C. v. ACE American Insurance Co., the Fifth Circuit held that the district court had not issued a final, appealable decision when the plaintiff had dismissed one of its claims without prejudice. The court had held CBX Resources in abeyance pending the en banc decision in Williams v. Taylor Seidenbach, Inc., which was poised to fix the Fifth Circuit’s so-called “finality trap.” But Williams declined to do so, leaving the trap open for other litigants.

Hopefully the plaintiff in CBX Resources will be able to fix the finality issues by obtaining a Rule 54(b) certification. CBX Resources has me wondering, however, whether the Fifth Circuit might have actually encouraged manufactured appeals by adopting its Rule 54(b) approach.

For more, see my post Another Victim of the Finality Trap.

CBX Resources, L.L.C. v. ACE American Insurance Co., 2020 WL 2374593 (5th Cir. May 12, 2020), available at the Fifth Circuit and Westlaw.

The Sixth Circuit rejected an improper qualified-immunity appeal

In Bullock v. City of Detroit, the Sixth Circuit dismissed part of a qualified-immunity appeal that challenged the factual basis for the denial of qualified immunity.

Bullock involved (among other things) the fatal shooting of the plaintiff’s dog during a police raid. The dog’s owner sued the officer who shot the dog. And the district court denied the officer’s request for qualified immunity, concluding that factual issues existed as to whether the dog posed a threat to the officer when he shot her. The officer nevertheless appealed the denial of immunity.

The Sixth Circuit dismissed this portion of the appeal. (There were also issues dealing with immunity for the raid itself.) The officer claimed that the dog “barked, growled, and charged snarling at him.” But the district court determined that circumstantial evidence would allow a jury to conclude that the dog did not bark, growl, or charge:

Among other things, none of the officers had heard or seen Mandy while they shouted their presence and gained entry by ramming the door. In addition, taking the facts in the light most favorable to Bullock, Castro did not see or hear Mandy before Morrison shouted and shot the dog. And, when Morrison shot Mandy a second time, he concedes that the dog was “limping.” More generally, Mandy had never previously charged anyone and typically hid from strangers.

The officer did not dispute that under these facts he violated clearly established law. He instead asked the Sixth Circuit to review the record for itself to determine what a reasonable jury could find. But that’s not allowed in an interlocutory qualified-immunity appeal. The court accordingly dismissed the appeal insofar as the officer sought to dispute the facts.

Bullock v. City of Detroit, 2020 WL 2500640 (6th Cir. May 14, 2020), available at the Sixth Circuit and Westlaw.

The Ninth Circuit held that it lacks jurisdiction to review “settled course” arguments in immigration appeals

In Lona v. Barr, the Ninth Circuit held that it could not address whether the Board of Immigration Appeals deviated from its “settled course” in refusing to sua spone reopen a case.

The petitioner in Lona had been removed to Mexico. A few years later, she moved for reconsideration in light of several intervening Ninth Circuit decisions. But an immigration judge denied the motion, and the Board of Immigration Appeals dismissed the petitioner’s appeal from that denial. The petitioner then sought review in the Ninth Circuit.

The petitioner argued (among other things) that the Board erred in not sua sponte reopening her case. According to the petitioner, in doing so the Board had deviated from its prior decisions and precedent holding that circumstances like the petitioner’s warranted sua sponte reopening. But this argument raised some jurisdictional issues, as jurisdiction in immigration appeals is limited. When it comes to the Board’s denial of sua sponte reconsideration, the court reviews only for legal or constitutional issues. And in Lona, the Ninth Circuit concluded that the Board’s alleged failure to follow its “settled course of adjudication” was not a legal or constitutional error.

In doing so, the Ninth Circuit disagreed with the Third Circuit, which has allowed “settled course” review.

Lona v. Barr, 2020 WL 2507362 (9th Cir. May 15, 2020), available at the Ninth Circuit and Westlaw.

The Third Circuit held that a merits decision was final despite outstanding issues regarding a filing injunction

In Kent v. Philadelphia Department of Human Services, the Third Circuit held that the dismissal of a complaint and a subsequent filing injunction were separate final decisions for appeal purposes.

The district court in Kent initially dismissed the plaintiff’s action. (The opinion contains few details about that action.) It simultaneously ordered the plaintiff to show cause as to why the district court should not enjoin future filings based on the allegations in the dismissed action. The plaintiff responded about 50 days later, after which the district court imposed the filing injunction. The plaintiff then appealed.

The Third Circuit noted that it had jurisdiction to review the filing injunction; the plaintiff had filed a timely notice of appeal within 30 days of that decision. But the plaintiff filed only one notice of appeal, which came far more than 30 days after the decision dismissing the plaintiff’s complaint. The Third Circuit accordingly held that the plaintiff had failed to file a timely notice of appeal from the dismissal. Citing to the Supreme Court’s decision on the appealability of merits decisions despite outstanding attorneys’ fees issues, the court said that “[t]he dismissal order was a final judgment on the merits, despite the outstanding collateral issue of the filing injunction.”

Kent v. Philadelphia Department of Human Services, 2020 WL 2500632 (3d Cir. May 14, 2020), available at the Third Circuit and Westlaw.

Quick notes

In Cromar v. United States, the Tenth Circuit held that it had jurisdiction despite the district court’s dismissal without prejudice. The district court dismissed the entire action—not just the complaint—thereby making the judgment final and appealable. The Tenth Circuit cited to its decision in Moya v. Schollenbarger, which nicely explains that court’s framework for assessing the finality of dismissals.

In United States v. Independent Medical Services, Inc., the Ninth Circuit heard an immediate appeal from an order requiring the United States to pay an opposing party’s litigation expenses. The district court had appointed two attorneys to assist the defendants in investigating potential conflicts of interest with the defendants’ attorneys. The court later ordered the government to pay those appointed attorneys’ fees. The Ninth Circuit has held that the government can immediately appeal these sorts of decisions via the collateral-order doctrine.

And in United States v. Sterling, the Eighth Circuit noted that it had jurisdiction to review a mid-term modification of supervised release. The court explained that “an order modifying supervised release conditions is, in substance, the entry of a new appealable sentence.”

Cromar v. United States, 2020 WL 2394010 (10th Cir. May 12, 2020), available at the Tenth Circuit and Westlaw.

United States v. Independent Medical Services, Inc., 2020 WL 2394878 (9th Cir. May 12, 2020), available at the Ninth Circuit and Westlaw.

United States v. Sterling, 2020 WL 2465642 (8th Cir. May 13, 2020), available at the Eighth Circuit and Westlaw.