The Week in Federal Appellate Jurisdiction: May 17–23, 2020

Last week saw a few decisions of note. The Fourth Circuit cleaned up its law on appealing dismissals without prejudice, deeming its 2015 decision in Goode v. Central Virginia Legal Aid Society, Inc. to be bad law. The First Circuit held that it could address whether the Board of Immigration Appeals deviated from its settled course of adjudication in reviewing the denial of sua sponte reopening. (In doing so, the court held contrary to a Ninth Circuit decision from last week.) The Third Circuit held that it could review a denial of arbitration even though that denial was based on disputed fact issues. And two courts dismissed qualified-immunity appeals that sought to challenge whether genuine fact issues precluded immunity.

• The Fourth Circuit clarified appellate jurisdiction over dismissals without prejudice
• The First Circuit held that it could address settled-course arguments in reviewing denials of sua sponte reopening
• The Third Circuit on appealing denials of arbitration involving fact disputes
• Some improper qualified-immunity appeals

The Fourth Circuit clarified appellate jurisdiction over dismissals without prejudice

In Bing v. Brivo Systems, LLC, the Fourth Circuit clarified its law governing appeals from dismissals without prejudice. In a series of decisions, that court had laid out a framework for when those dismissals are final and appealable. But a more recent decision—Goode v. Central Virginia Legal Aid Society, Inc.—had applied a more restrictive to appeals involving pleading deficiencies.

Bing required the Fourth Circuit to clarify the law governing these appeals. The court ultimately held that Goode was inconsistent with earlier Fourth Circuit decisions and must be disregarded. In a footnote, the court also pointed to an easier path: deeming an appeal from these dismissals an implicit waiver of the right to amend. Doing so would avoid the finality problems that dismissals without prejudice can create, would protect plaintiffs’ right to appeal, and would create certainty over appellate jurisdiction.

For full coverage of Bing, see my post The Fourth Circuit Says Goode is Bad Law.

Bing v. Brivo Systems, LLC, 2020 WL 2530832 (4th Cir. May 19, 2020), available at the Fourth Circuit and Westlaw.

The First Circuit held that it could address settled-course arguments in reviewing denials of sua sponte reopening

In Thompson v. Barr, the First Circuit held that it could review whether the Board of Immigration Appeals deviated from its prior decisions in denying sua sponte reopening.

The case involved the intricacies of appellate jurisdiction over immigration decisions. The particular issue was jurisdiction over the Board’s denial of a request to sua sponte reopen a removal order. (Despite being called “sua sponte reopening,” immigration petitioners ask for the Board to exercise this power.) As a general rule, the courts of appeals lack jurisdiction to review the denial of sua sponte reopening. Most courts have held, however, that they can review these denials when a legal or constitutional error underlies the Board’s decision.

Thompson appears to hold that courts of appeals can also review whether the Board deviated from its “settled course of adjudication” in denying sua sponte reopening. And in so holding, the First Circuit disagreed with the Ninth Circuit, which held last week that it lacked jurisdiction to review this issue. (Thompson didn’t discuss the Ninth Circuit’s decision, however, probably because they were decided so closely together.)

For a full discussion of Thompson and the new split on settled-course review, see my post Split on Settled-Course Review in Immigration Appeals.

Thompson v. Barr, 2020 WL 2570167 (1st Cir. May 21, 2020), available at the First Circuit and Westlaw.

The Third Circuit on appealing denials of arbitration involving fact disputes

In Bacon v. Avis Budget Group, Inc., the Third Circuit held that it could review an order denying arbitration despite outstanding fact issues on arbitrability.

Several plaintiffs sued Payless Car Rental, and Payless sought to compel arbitration of their claims. The district court denied the motion to compel arbitration. It determined that some plaintiffs had not agreed to arbitrate. As to others, the court determined that fact issues existed as to arbitrability and expected that they would be resolved via summary judgment or trial. Payless then appealed.

Everyone agreed that the Third Circuit had jurisdiction to review the decision insofar as it determined that some plaintiffs had not agreed to arbitrate. But the parties disputed whether the court could review the decision insofar as the district court determined that it could not resolve arbitrability due to unresolved fact issues.

The Third Circuit held that it had jurisdiction over these latter matters. Under 9 U.S.C. § 16, the courts of appeals have jurisdiction to immediately review orders denying a motion to compel arbitration. And the defendants asked the district court to compel arbitration. Although the district court did not definitively resolve arbitrability—it determined that fact issues had to be resolved—its order effectively denied arbitration and was therefore appealable.

Bacon v. Avis Budget Group, Inc., 2020 WL 2517969 (3d Cir. May 18, 2020), available at the Third Circuit and Westlaw.

Some improper qualified-immunity appeals

Although the courts of appeals have jurisdiction to review interlocutory decisions denying qualified immunity, the scope of those appeals is limited. As a general rule, jurisdiction exists to review whether the defendant violated clearly established federal law. But the court of appeals must take as true the same facts that the district court determined a reasonable jury could find. They lack appellate jurisdiction to look behind the facts that the district court assumed were true to see if the summary-judgment record supports them.

Despite these general rules being 25-years old, defendants regularly flout them. Last week saw two examples.

The Sixth Circuit rejected a defendant’s attempt to argue the facts in Lumbard v. Lillywhite. The case involved multiple claims and defendants, only some of which are relevant to appellate jurisdiction. The plaintiff alleged that while detained in a Michigan jail a nurse delayed his treatment and punished him for complaining about medical issues. (The plaintiff was later diagnosed with multiple sclerosis.) He sued the nurse for deliberate indifference and retaliation. The district court denied the nurse’s request for qualified immunity, concluding that several genuine fact issues existed. The nurse nevertheless appealed.

The Sixth Circuit dismissed this portion of the appeal. It noted several relevant fact disputes:

• The plaintiff said that he told the nurse of his condition, including the abrupt deterioration of his eyesight; the nurse claimed that the plaintiff described no disabilities, special needs, or family history of illness.
• The plaintiff claimed he made daily requests for a doctor, which was scheduled only after repeated calls from his mother and lawyer; the nurse claimed that she scheduled the appointment a day after learning of the plaintiff’s vision problems.
• The plaintiff alleged that he was placed in the “drunk tank” in retaliation for his (and his mother’s) requests for medical care; the nurse claimed that he was moved there to better observe him.

The court also noted that the nurse did not contest that the plaintiff’s allegations made out a clearly established violation of constitution law. She instead argued that the district court should not have assumed those allegations to be true in denying qualified immunity. But the court’s “interlocutory jurisdiction does not extend to instances where defendants ‘merely quibble with the district court’s reading of the factual record.’” And nothing in the record blatantly contradicted the plaintiff’s version of events.

The Second Circuit rejected a similar appeal in Swain v. Wappinger. Swain involved § 1983 claims stemming from the plaintiff’s firing from a local highway department. The district court determined that several genuine fact issues existed as to those claims, including the steps that the defendants took (or didn’t take) before firing the plaintiff and whether the defendants acted with a retaliatory motive. The district court accordingly denied qualified immunity. The defendants nevertheless appealed the denial of qualified immunity. And on appeal, they urged their own version of the facts—not the version that the district court took as true in denying immunity.

The Second Circuit concluded that the defendants’ arguments on appeal all involved the sufficiency of the evidence. And in an interlocutory appeal from the denial of qualified immunity, evidence-sufficiency issues are outside the scope of appeal. The defendants’ appeal was accordingly improper, and the Second Circuit dismissed it.

Lumbard v. Lillywhite, 2020 WL 2569357 (6th Cir. May 21, 2020), available at the Sixth Circuit and Westlaw.

Swain v. Wappinger, 2020 WL 2530184 (2d Cir. May 19, 2020), available at the Second Circuit and Westlaw.