The Week in Federal Appellate Jurisdiction: November 1–7, 2020

Last week, the Supreme Court heard oral argument on the finality of denied requests to reopen benefits decisions for railroad workers. The Tenth Circuit joined every other circuit in holding that it could not review a remand order when post-removal joinder destroyed diversity jurisdiction. The Eighth Circuit allowed an appellant to cure a finality problem—during oral argument—by converting a voluntary dismissal to one with prejudice. Two courts dismissed qualified-immunity appeals in which the defendants challenged the factual basis for the immunity denial. The Seventh Circuit treated a petition for permission to appeal as a notice of appeal. And the Supreme Court denied cert in a case that raised some interesting questions about mandamus.

• Oral Argument in Salinas
• The Tenth Circuit on Remand Appeals After Post-Removal Joinder
• The Eighth Circuit Allowed an Appellant to Cure a Finality Problem by Disclaiming Any Right to Refile Voluntarily Dismissed Claims
• Two Courts Dismissed Fact-Based Qualified-Immunity Appeals
• The Seventh Circuit Treated a Petition for Permission to Appeal as a Notice of Appeal
• Cert Denied in Manzano

Oral Argument in Salinas

On Monday, the Supreme Court heard argument in Salinas v. U.S. Railroad Retirement Board. The case asks if the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a “final decision” subject to judicial review. You can listen to the argument at Oyez. And Sam Callahan and Allon Kedem’s argument analysis for SCOTUSBlog is here: Argument analysis: Justices debate power of courts to review requests to reopen railroad benefits decisions

The Tenth Circuit on Remand Appeals After Post-Removal Joinder

In Elite Oil Field Enterprises, Inc. v. Reed, the Tenth Circuit held that 28 U.S.C. § 1447(d) barred review of a remand that was due to the post-removal joinder of non-diverse defendants.

Simplifying a fair bit, Elite Oil started as a suit in Colorado state court. Because the plaintiff and the defendant were diverse parties, the defendant removed the case to federal court. The plaintiff then amended its complaint to add several non-diverse parties and asked the district court to remand the suit to state court. The defendants opposed remand, arguing that the amended complaint was improper; the plaintiff, they argued, needed to obtain leave of court under § 1447(e) to file an amended complaint that would destroy subject-matter jurisdiction. The district court rejected the defendants’ arguments and remanded the suit to state court. The defendants then appealed.

28 U.S.C. § 1447(d) says that the courts of appeals lack jurisdiction—“by appeal or otherwise”—to review most remand orders. (The statute contains a few exceptions that are irrelevant to the present discussion.) The Supreme Court has held that this bar applies only to remands authorized under § 1447(c): remands (1) due to a lack of federal jurisdiction or (2) on a timely motion pointing out a defect in removal.

The remand in Elite Oil was due to a lack of diversity jurisdiction and thus appeared to fall squarely within § 1447(d)’s prohibition on appellate review. But the defendants argued that the remand was not one under § 1447(c). All parties were diverse at the time or removal, and diversity jurisdiction was destroyed only due to post-removal joinder. The defendants accordingly argued that the remand was under § 1447(e), which governs post-removal joinder:

If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

Since the remand was not under subsection (c), the defendants argued, subsection (d)’s general bar on appellate review did not apply.

The Tenth Circuit rejected this argument. Under § 1447(c), defects in subject-matter jurisdiction include defects that arise after removal. So § 1447(d)’s bar on appellate review applies equally to remands due to defects that arise after removal. The Tenth Circuit joined every other circuit to hold that this is true even though the remand might technically be made under § 1447(e). “A remand for lack of subject matter jurisdiction under § 1447(e), which, like the case at hand, arises post-removal, and a remand for lack of subject matter jurisdiction under § 1447(c), which may arise at the time of removal or post-removal, are indistinguishable for purposes of determining whether § 1447(d)’s bar to appellate review applies.” (Cleaned up.) The Tenth Circuit accordingly dismissed the appeal for a lack of jurisdiction.

Elite Oil Field Enterprises, Inc. v. Reed, 2020 WL 6437961 (10th Cir. Nov. 3, 2020), available at the Tenth Circuit and Westlaw.

The Eighth Circuit Allowed an Appellant to Cure a Finality Problem by Disclaiming Any Right to Refile Voluntarily Dismissed Claims

In Rossley v. Drake University, the Eighth Circuit held that the voluntary dismissal of an outstanding claim at oral argument saved a premature notice of appeal.

Rossley involved various claims stemming from a student’s suspension from Drake University. The district court court granted summary judgment for the university on all but two of the plaintiff’s claims. The parties then agreed to voluntarily dismiss those remaining two claims without prejudice. The plaintiff then appealed from the district court’s summary-judgment decision.

The without-prejudice voluntary dismissal of two claims created a finality problem. Parties sometimes try to manufacture interlocutory appeals by voluntarily dismissing all outstanding claims without prejudice. The thought is that the dismissal will allow an appeal of any claims the district court had resolved, after which (and regardless of the appeal’s outcome) the parties will reinstate the voluntarily dismissed claims. I’ve written about this tactic quite a bit recently; for more on the issue, see this post on the Fifth Circuit’s recent (and bungled) attempt to address it.

Most courts will allow parties to cure any finality problems by converting the voluntary dismissal to one with prejudice. The appellant thereby disclaims any right to refile the voluntarily dismissed claims, removing any concern about a manufactured appeal. This can happen in briefing, at oral argument, and even after argument. In Rossley, it happened at oral argument. The plaintiff agreed to convert the two without-prejudice dismissals to with-prejudice dismissals. That was enough to secure the Eighth Circuit’s appellate jurisdiction.

Also of note, this is the closest the Eighth Circuit has come in some time to a more generous approach to cumulative finality. If the district court’s decision was not final due to the without-prejudice dismissal, the plaintiff’s notice of appeal was technically premature. The subsequent conversion of that dismissal to one with prejudice cured the premature notice. The Eighth Circuit did not note this in its opinion, but it’s important; the Eighth Circuit is one of the most strict circuits when it comes to relation forward of a premature notice of appeal. Perhaps litigants could use Rossley in the future to move the Eighth Circuit away from its strict approach.

Rossley v. Drake University, 2020 WL 6494710 (8th Cir. Nov. 5, 2020), available at the Eighth Circuit and Westlaw.

Two Courts Dismissed Fact-Based Qualified-Immunity Appeals

With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. These defendants 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.

But defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue only that the district court erred in determining what a reasonable jury could find. Appellate courts eventually 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. 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 qualified-immunity appeals.

Gamel-Medler

In Gamel-Medler v. Almaguer, the plaintiff alleged that the defendant police officers conspired to deny him equal protection because the plaintiff was gay and had a Black son. The district court denied the defendants’ request for qualified immunity. According to the district court, a reasonable jury could find that police both conspired to treat and treated the plaintiff differently due to a discriminatory animus. The defendants then appealed.

The Tenth Circuit determined that the defendants’ appeal was “limited exclusively to the proposition that the district court erred in assessing the factual record.” “Although Defendants’ briefs contain the buzz words ‘clearly established,’ they do so only in the context of a set of facts completely at odds with those assumed by the district court in denying their request for summary judgment.” “Because Defendants’ briefs amount[ed] to nothing more than an attack on the district court’s determinations of evidentiary sufficiency,” the court of appeals lacked jurisdiction.

Judge Bacharach dissented. He read the defendants’ brief to make at least some arguments that were within the Tenth Circuit’s jurisdiction:

Though the defendants contest the district court’s assessment of the facts, the defendants also challenge the district court’s characterization of the conduct as a violation of clearly established rights.

Judge Bacharach accordingly thought that the court had jurisdiction to address the merits of the qualified-immunity denial. And on those merits, Judge Bacharach would have affirmed; the district court correctly denied qualified immunity.

Thomas

In Thomas v. Bauman, police ransacked the plaintiffs’ home while conducting a search. Police first detained a suspect’s mother and siblings. Police then executed a search of the family’s home that involved shooting a riot gun at the home’s exterior and deploying chemical gas from an armored vehicle. When police finally entered the home, they did not find the suspect. The search resulted in significant damage to the home and its contents. The plaintiffs—the mother and the suspect’s siblings—sued the police officers who detained them and executed the warrant, alleging claims for unreasonable search and seizure.

The district court denied the officers’ request for qualified immunity, and the officers appealed. But in that appeal, the officers “contradicted [the plaintiffs’] version of the facts at every turn”:

The officers assert that the district court put an “inordinate emphasis” on the plaintiff’s allegations, thus “siding with speculation.” They also argue that the district court did not give adequate weight to their “side of the story,” which, in their view, demonstrates that their actions are simply “an example of police work.” In doing so, the defendants premise their legal arguments on persuading us to believe their version of the facts.

(Cleaned up.) The Sixth Circuit accordingly held that it lacked jurisdiction over the appeal.

Gamel-Medler v. Almaguer, 2020 WL 6537391 (10th Cir. Nov. 6, 2020), available at the Tenth Circuit and Westlaw.

Thomas v. Bauman, 2020 WL 6441163 (6th Cir., Nov. 3, 2020), available at the Sixth Circuit and Westlaw.

The Seventh Circuit Treated a Petition for Permission to Appeal as a Notice of Appeal

In Girtler v. Fedie, the Seventh Circuit treated a petition for permission to appeal as a notice of appeal.

The district court in Girtler denied the plaintiff’s request to be transferred to another prison. The plaintiff then tried to appeal. But the defendants argued that the plaintiff had failed to file a timely notice of appeal. The plaintiff had filed a petition for permission to appeal under Federal Rule of Appellate Procedure 5, not a notice of appeal under Rule 3.

The Seventh Circuit held that the petition should be treated as a notice of appeal. Notices of appeal must (1) identify the appellants, (2) designate the judgment or order appealed, and (3) name the court to which the appeal is taken. The plaintiff’s petition for permission to appeal “contained all that and more.” And the defendants “concede[d] that, had [the plaintiff] cited Rule 3 instead of Rule 5, his filing would been timely.” The court of appeals accordingly held that the plaintiff filed a timely notice of appeal.

Girtler v. Fedie, 2020 WL 6481797 (7th Cir. Nov. 4, 2020), available at the Seventh Circuit and Westlaw.

Cert Denied in Manzano

The Supreme Court denied cert in Manzano v. United States. The case involved the government’s use of mandamus in a criminal case, and the petition raised two mandamus-related questions:

• Can the United States use mandamus to take an interlocutory appeal that is not permitted by 18 U.S.C. § 3731?
• Is an appellate court’s firm belief that an error occurred enough to show a clear-and-indisputable right that is necessary for a grant of mandamus?

You can read more about the Second Circuit’s decision in Manzano here.