The Week in Federal Appellate Jurisdiction: May 31–June 6, 2020

Last week saw the last appellate jurisdiction/procedure decision for this year’s Supreme Court term. In Nasrallah v. Barr, the Court held that courts could review factual findings underlying denials of protection under the Convention Against Torture, even if the petitioner had been convicted of a crime. There were also several court of appeals decisions of note. The Sixth Circuit dismissed a discovery appeal that involved deposing as non-party fact witnesses two defendants who claimed qualified immunity. The Second Circuit addressed how long parties have to file a notice of appeal when the United States intervenes in a qui tam action. Plus improper qualified-immunity appeals, excusing the failure to amend a notice of appeal, the jurisdictionality of objecting to a magistrate judge’s report and recommendation, and more.

• The Supreme Court held that courts can review factual findings in CAT cases
• The Sixth Circuit dismissed a discovery appeal involving non-party fact witnesses who claimed qualified immunity
• The Second Circuit on the time for appealing when the U.S. intervenes in a qui tam action
• This week’s improper qualified-immunity appeals
• The Sixth Circuit excused a failure to file a new notice of appeal
• The Eleventh Circuit held that failure to object to a magistrate judge’s R&R is a jurisdictional defect
• Quick notes

The Supreme Court held that courts can review factual findings in CAT cases

In Nasrallah v. Barr, the Supreme Court held that appellate courts can review factual findings that underly denials of protection under the Convention Against Torture, even if the petitioner has been convicted of a criminal offense. The Court distinguished between the two orders at issue in the immigration appeal: the final order of removal and the order denying protection under the Convention. The bar on reviewing factual findings applied only to the final order of removal. It did not apply to the separate order denying Convention protection, which tagged along with the final order of removal for appellate review. A dissent by Justice Thomas contended that immigration law’s “zipper clause” meant that the denial of Convention protection was reviewed as part of the final order of removal. The bar on reviewing factual findings accordingly applied.

For more, see my post Nasrallah v. Barr: Courts Can Review Factual Findings in Convention Against Torture Cases.

Nasrallah v. Barr, 2020 WL 2814299 (June 1, 2020), available at the Supreme Court and Westlaw.

The Sixth Circuit dismissed a discovery appeal involving non-party fact witnesses who claimed qualified immunity

In In re Flint Water Cases, the Sixth Circuit dismissed two government officials’ appeals from orders requiring them to sit for depositions.

The appeal arose from the litigation over the Flint, Michigan water crisis. Simplifying a bit, the district court refused to dismiss § 1983 bodily-integrity claims against two former Michigan officials: former Governor Richard Snyder and former State Treasurer Andy Dillon. The officials then appealed the denial of qualified immunity. While that appeal was pending, all discovery on the claims against the officials was stayed. But there were other claims and other defendants. And the parties noticed both officials for depositions as non-party fact witnesses for those other claims. The officials sought a protective order, which the district court denied. The officials then appealed, asking the Sixth Circuit to stay the depositions and reverse the denial of a protective-order.

The Sixth Circuit denied the stay. The district court had effectively granted the defendants immunity from discovery on the claims against them, pending a decision on their qualified-immunity appeals. And it structured the remaining discovery to avoid encroaching on that immunity while still allowing the litigation to proceed:

The district court carefully sculpted a discovery plan that afforded the state defendants their full entitlement to immunity, while permitting other parties to seek discovery from them as fact witnesses on wholly separate claims. The discovery plan would permit state defendants to be deposed as non-party fact witnesses to events regarding separate claims brought against different defendants to prevent the litigation from stalling out for all defendants during the pendency of these state defendants’ appeals of the denial of their motions to dismiss based on qualified immunity.

The state officials were thus unlikely to succeed in appealing the denial of the protective order and would not suffer any irreparable harm.

On top of that, there was no jurisdiction over the appeal. The officials argued that the district court’s denial of a protective order was effectively a denial of qualified immunity. But, the Sixth Circuit explained, appeals from the denial of qualified immunity come at only two times: denials of a motion to dismiss and denials of a motion for summary judgment. The order in Flint Water Cases was neither. It was instead a run-of-the-mill discovery order. And there are no appeals from those kinds of orders:

Snyder and Dillon are not entitled to appeal any number of discovery matters that they believe have some impact on their immunity interest. We can only imagine the deluge of appeals that would descend upon us if standard discovery orders could so easily be rebranded as final judgments.

In re Flint Water Cases, 2020 WL 2845692 (6th Cir. June 2, 2020), available at the Sixth Circuit and Westlaw.

The Second Circuit on the time for appealing when the U.S. intervenes in a qui tam action

In United States ex rel. Hanks v. United States, the Second Circuit held that the United States was a party for purposes of appeal timing when it intervenes and does not formally withdraw from a qui tam action.

The case (despite its odd title) was a qui tam action against several health care providers. The United States intervened at one point and settled some of the relator’s claims. But the United States never formally withdrew. And it continued to monitor the litigation.

This was enough, the Second Circuit concluded, for the United States to be a “party” under Federal Rule of Appellate Procedure 4(a)(1)(B). So when the district court dismissed the relator’s remaining claims, the relator had 60—not 30—days to file his notice of appeal.

United States ex rel. Hanks v. United States, 2020 WL 2892862 (2d Cir. June 3, 2020), available at the Second Circuit and Westlaw.

This week’s improper qualified-immunity appeals

Although defendants can appeal from the denial of qualified immunity at summary judgment, the scope of that appeal is limited. The court of appeals has jurisdiction to address whether the facts that the district court took as true for purposes of the motion amount to a clearly established violation of law. The court generally cannot address whether the summary-judgment record supports those facts. In other words, the courts of appeals have jurisdiction to address only the materiality of any fact disputes, not their genuineness.

Yet defendants regularly flout this limit on appellate jurisdiction. This week’s example is White v. Mesa, in which the Eleventh Circuit dismissed a qualified-immunity appeal because the defendants’ arguments rested on disputed facts. White involved a high-speed car chase that ended in police officers’ arresting the driver and passenger. The passenger sued the officers, alleging that they used excessive force in removing him from the car:

[Officer] Mesa pulled White out of the car by his arms and threw him to the ground. According to White, the cadre of officers then proceeded to kick, choke, and punch him. Mesa (at minimum) punched him five times and “knee[d]” him. [Officer] Pena (at minimum) punched White seven or eight times. White also claims that the officers lifted him from the ground and slammed him back down again. After the assault, the officers handcuffed White and took him into custody. White came away from the encounter with substantial facial injuries.

The district court denied qualified immunity, and the officers appealed.

In that appeal, the defendants failed to respect the limits on the scope of interlocutory qualified-immunity appeals. They argued that the plaintiff struggled with the officers and tried to evade them. They also argued that the plaintiff got up on his own and was not picked up. But, as the Eleventh Circuit noted, “[t]hese are not legal challenges; they are challenges to the district court’s determination of which facts were adequately supported by the evidence.” And the video of the arrest did not blatantly contradict those facts. The court accordingly dismissed the appeal.

There was also a revised opinion issued in Amador v. Vasquez, in which the Fifth Circuit dismissed a qualified-immunity appeal because the officers failed to accept the district court’s version of the facts as true for purposes of the appeal.

I covered the original decision in a prior weekly roundup. As far as I can tell, the court made only one change. In the original opinion, the court said:

“A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.”

The court changed the first word of that sentence in the revised opinion:

Every reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.

(Emphasis mine.)

White v. Mesa, 2020 WL 2857667 (11th Cir. June 2, 2020), available at the Eleventh Circuit and Westlaw.

Amador v. Vasquez, 2020 WL 2900759 (5th Cir. June 3, 2020), available at the Fifth Circuit and Westlaw.

The Sixth Circuit excused a failure to file a new notice of appeal

In Singletary Construction, LLC v. Reda Home Builders, Inc., the Sixth Circuit held that failure to amend a notice of appeal to include a denial of a new trial did not preclude jurisdiction over the arguments underlying that denial.

Singletary Construction was a copyright-infringement action. Simplifying a bit, the jury found for the plaintiff and the district court entered a judgment for about $310,000. The defendants then moved for a new trial or a remittitur. But before the district court could decide that motion, the defendants filed a notice of appeal that specified only the final judgment. The district court later denied the post-trial motion, and the defendants never amended their notice or filed a new one. They nevertheless sought to appeal the amount of damages.

The Sixth Circuit had to decide whether it could review that issue. Federal Rule of Appellate Procedure 3(c) requires that parties designate in their notice of appeal the orders they are appealing. The defendants obviously did not designate the denial of their post-trial motion in their original notice, as it came before that decision. Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires that parties file a second or amended notice to challenge a decision denying (among other things) Rule 59 motions. And the defendants failed to file a second notice of appeal or amend their original one to designate the post-judgment decision.

The Sixth Circuit nevertheless held that it could review the damages award. The court excuses these sort of defects in notices so long as the substance of the post-judgment motion and decision were raised before the final judgment. And the defendants raised their weight-of-the-judgment issues before entry of the final judgment. In between the jury verdict and the district court’s entry of a final judgment, the defendants sought judgment not withstanding the verdict. The district court never decided that motion, instead entering a final judgment (which was then followed by the defendants’ motion for a new trial or a remittitur). Addressing the issue also did not prejudice the plaintiffs. So refusing to consider the post-trial decision “would be upholding form for form’s sake, and would not advance justice in this case, or in general.”

Singletary Construction, LLC v. Reda Home Builders, Inc., 2020 WL 2841816 (June 1, 2020), available at the Sixth Circuit and Westlaw.

The Eleventh Circuit held that failure to object to a magistrate judge’s R&R is a jurisdictional defect

In Rhiner v. Secretary, Florida Department of Corrections, the Eleventh Circuit held that it lacked jurisdiction to review a magistrate judge’s recommended decision because the appellant did not object to the recommendation. Federal Rule of Civil Procedure 72(a) requires that objections to a magistrate judge’s report and recommendation be filed in the district court within 14 days. It goes on to say that a party “may not assign as error a defect in the order not timely objected to.” The Eleventh Circuit had occasionally treated the failure to object to a report and recommendation as a waiver. But Rhiner said that under United States v. Renfro, the failure to object is a jurisdictional bar on appellate review of the magistrate judge’s decision.

Rhiner v. Secretary, Florida Department of Corrections, 2020 WL 2991776 (June 4, 2020), available at the Eleventh Circuit and Westlaw.

Quick notes

Two additional cases of note:

In Zhang v. Zhang, the Second Circuit dismissed an appeal seeking to review a sanction order because the amount of sanctions was not yet determined. Much like a decision that resolves only liability but does not set the amount of damages, a sanction order is not final if it does not set the amount of sanctions. (Courts will occasionally apply an exception to this rule when determining the amount of sanctions would be technical or ministerial and thus unlikely to produce another appeal.) Once the district court sets that amount, the sanctioned party can appeal.

And in Los Angeles SMSA LP v. City of Los Angeles, the Ninth Circuit applied the odd rule that it lacked jurisdiction to review the denial of permissive intervention because the district court did not abuse its discretion. This rule makes jurisdiction turn on the merits of the appeal. Deciding whether jurisdiction exists requires determining whether the district court erred. So the court of appeals reviews the district court’s decision despite uncertainty over appellate jurisdiction. But upon concluding that it would affirm that decision, the court of appeals holds that it lacks jurisdiction and dismisses the appeal.

A more sensible rule would be to say that appellate jurisdiction exists to immediately review the denial of permissive intervention just like the denial of intervention as of right. And an even more sensible rule might be that denials of permissive intervention are not immediately appealable. Decisions denying permissive intervention are rarely reversed, and it’s worth wondering whether they merit an immediate appeal like denials of intervention as of right.

Zhang v. Zhang, 2020 WL 2892563 (2d Cir. June 3, 2020), available at the Second Circuit and Westlaw.

Los Angeles SMSA LP v. City of Los Angeles, 2020 WL 3001025 (9th Cir. June 4, 2020), available at the Ninth Circuit and Westlaw.