Bankruptcy finality, anti-SLAPP appeals, amendment waivers, qualified immunity, and more.
November 24, 2020
Last week, a Sixth Circuit concurrence offered a new approach to finality for bankruptcy appeals. The First Circuit added denials of special motions under Maine’s anti-SLAPP law to the list of appealable collateral orders. The Eleventh Circuit told litigants that they have to accept the consequences of waiving the right to amend so that they could appeal. Several courts rejected fact-based qualified-immunity appeals, with the Fifth Circuit supplying an especially helpful primer on the scope of those appeals. And the Fourth Circuit refused to address other defenses alongside a sovereign-immunity appeal.
- The Sixth Circuit on Multi-Level Finality in Bankruptcy Appeals
- The First Circuit Held That Litigants Can Immediately Appeal Denials of Motions Under Maine’s Anti-SLAPP Law
- The Eleventh Circuit Enforced the Amendment-Waiver Rule That Allows Appeals After Dismissals With Leave to Amend
- This Week’s Improper Qualified-Immunity Appeals
- The Fourth Circuit Said No Pendent Appellate Jurisdiction in a Sovereign-Immunity Appeal
The Sixth Circuit on Multi-Level Finality in Bankruptcy Appeals
In In re Wohleber, the Sixth Circuit held that a Bankruptcy Appellate Panel decision remanding an action for further proceedings was not final or appealable. Review in the court of appeals would come only after those further proceedings were completed.
This is the normal rule for bankruptcy’s multi-tiered appellate review. But Judge Batchelder concurred to offer a different rule. As Judge Batchelder saw things, only one level of decision—the bankruptcy court’s judgment or the intermediate appellate judgment—needed to be final for the court of appeals to review it.
For more, see my post from this morning: Bankruptcy Appeals & Multi-Level Finality.
In re Wohleber, 2020 WL 6781237 (6th Cir. Nov. 18, 2020), available at the Sixth Circuit and Westlaw.
The First Circuit Held That Litigants Can Immediately Appeal Denials of Motions Under Maine’s Anti-SLAPP Law
In Franchini v. Investor’s Business Daily, the First Circuit held that the denial of special motion to strike under Maine’s anti-SLAPP law is immediately appealable via the collateral-order doctrine.
Several states have passed laws protecting defendants from suits brought with the purpose or effect of chilling speech and petition rights. These suits are often called “strategic lawsuits against public participation,” or “SLAPPs.” Anti-SLAPP laws protect against these suits with a special motion to dismiss/strike that the defendant can file early in the litigation. When defamation suits end up in federal court, some courts will apply state anti-SLAPP laws. (Other courts hold that applying these state procedures in federal court violates Erie.) And when district courts deny an anti-SLAPP motion, courts have split on whether the defendant can immediately appeal.
Franchini involved a defamation suit against a media outlet that published an op-ed about veterans’ health care. The defendant filed a special motion to dismiss under Maine’s anti-SLAPP law, which protects the right to petition. The district court denied that motion. It determined that the op-ed was not an exercise of anyone’s right to petition the government. The defendant then appealed.
The First Circuit held that the denial was appealable via the collateral-order doctrine. That doctrine allows litigants to immediately appeal district court decisions that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. (Appellate-jurisdiction trivia: the First Circuit breaks the second requirement—an issue that is both important and separate—into two separate requirements.)
Denial of the special motion to strike satisfied every requirement. The district court conclusively decided that Maine’s anti-SLAPP law did not require dismissal. The district court’s decision was separate from the merits in that the appeal did not involve the essential elements of defamation. The decision was also important, as it “implicate[d] important societal interests in both First Amendment protections for media outlets[] and the substantive statutory rights created under Maine law.” Finally, the decision would be effectively unreviewable in a later appeal. Maine’s anti-SLAPP law exists to protect litigants from the burdens of litigation, so the law’s protection is forever lost if it’s not vindicated immediately.
On the merits of the appeal, the First Circuit decided to certify a question to the Maine Supreme Judicial Court: was the media outlet’s publication of an op-ed petitioning activity under Maine’s anti-SLAPP law?
Franchini v. Investor’s Business Daily, 2020 WL 6791484 (1st Cir. Nov. 13, 2020), available at the First Circuit and Westlaw.
The Eleventh Circuit Enforced the Amendment-Waiver Rule That Allows Appeals After Dismissals With Leave to Amend
In Stevens v. Plumbers & Pipefitters Local 219, the Eleventh Circuit enforced its amendment-waiver rule.
The district court in Stevens had dismissed the plaintiff’s complaint with leave to amend. But rather than amend, the plaintiff appealed that dismissal. Although a dismissal with leave to amend is normally not final until the time for appealing passes, plaintiffs may stand on their original complaint—and waive the right to amend—by appealing. That’s what the plaintiff did in Stevens, and the Eleventh Circuit affirmed the dismissal.
While that appeal was pending, however, the plaintiff attempted to amend his complaint. The district court dismissed this amended complaint, holding that the plaintiff had waived the right to amend by appealing. The plaintiff then appealed that decision. And the Eleventh Circuit affirmed the dismissal. By appealing before the time to amend had expired, the plaintiff had waived his right to amend. And there was no reason not to enforce this normal waiver rule.
Stevens v. Plumbers & Pipefitters Local 219, 2020 WL 6781477 (11th Cir. Nov. 18, 2020), available at the Eleventh Circuit and Westlaw.
This Week’s Improper Qualified-Immunity Appeals
Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They 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.
Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue 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 a few examples of these improper, fact-based qualified-immunity appeals.
Joseph ex rel. Estate of Joseph v. Bartlett
Joseph ex rel. Estate of Joseph v. Bartlett involved excessive-force claims stemming from two police officers’ beating of the decedent. The decedent was suffering from psychosis, and police chased him into a convenience store. The decedent curled curled up into the fetal position behind the store’s counter. Police officers then Tased, punched, and kicked him, causing 26 blunt-force injuries that eventually led to the his death. According to the district court, a reasonable jury could find that the officers knew the decedent was suffering a mental-health crisis and that the decedent did not resist as the officers beat him:
[C]onstruing all facts and inferences in favor of Plaintiffs, the record supports the following account: Once behind the counter, Joseph immediately dropped into the fetal position, with his hands over his face. The officers then pinned him to the floor, rendering him incapable of complying with orders to put his hands behind his back and roll over. Joseph did not strike, kick, or threaten any officer, nor did he try. He squirmed, wiggled, and flailed at times, and he gave no struggle at other times. No officer attempted to negotiate with Joseph or otherwise de-escalate the encounter. No officer attempted to intervene, despite seeing and hearing Officers Martin and Costa tase, jab, punch, and kick Joseph, while he was pinned to the ground and experiencing a mental-health crisis. Joseph died from his injuries.
The decedent’s family sued the two officers who beat the decedent. They also sued other officers for not intervening. The district court denied all requests for qualified immunity. The officers then appealed.
The Fifth Circuit affirmed the denial of qualified immunity to the officers who beat the decedent. And throughout the opinion, the court rejected the officers’ multiple attempts to argue that the decedent was struggling and noncompliant. In doing so, the court offered an excellent explanation of the limited scope of review in qualified-immunity appeals, noting that the court “reviews earlier than it otherwise would, and it reviews less that it otherwise would” (cleaned up):
Our review is de novo, as summary-judgment review usually is. But we only review a denial of summary judgment based on qualified immunity “to the extent that it turns on an issue of law.” Both steps—the constitutional merits and the “clearly established law” inquiry—are questions of law. That means we do not second-guess the district court’s determination that there are genuine disputes of material fact, as we otherwise might. When the district court identifies a factual dispute, as it did here, we consider only whether the district court correctly assessed “the legal significance” of the facts it “deemed sufficiently supported for purposes of summary judgment.” But we do not evaluate whether the district court correctly deemed the facts to be “sufficiently supported”; that is, whether the “evidence in the record” would permit “a jury to conclude that certain facts are true.”” In short, we may evaluate whether a factual dispute is material (i.e., legally significant), but we may not evaluate whether it is genuine (i.e., exists).
The court ultimately dismissed the appeal to the extent the defendants challenged the factual basis for the district court’s decision, affirmed the denial of qualified immunity to the officers that beat the plaintiff, and reversed the denial of immunity to the officers accused of not intervening due to a lack of clearly established law.
Joseph ex rel. Estate of Joseph v. Bartlett, 2020 WL 6817823 (5th Cir. Nov. 20, 2020), available at the Fifth Circuit and Westlaw.
Rhodes v. Forsyth
Details in Rhoades v. Forsyth are scant. A police officer shot and killed someone during a car chase. The decedent’s estate sued for excessive force, and the district court denied the officer’s request for qualified immunity. According to the district court, a reasonable jury could find that the decedent’s car was not moving towards the officer when the officer shot. The officer then appealed. But his arguments on appeal “hinge[d] repeatedly, and fundamentally, on a view of the facts contrary to that reached by the district court in evaluating his summary judgment motion.” The officer did “not fairly challenge the district court’s specific legal conclusions independent of these factual disputes, precluding [the court] from considering those legal issues over which [it] could appropriately exercise jurisdiction at this juncture.”
Rhoades v. Forsyth, 2020 WL 6781730 (4th Cir. Nov. 18, 2020), available at the Fourth Circuit and Westlaw.
Fakhoury v. O’Reilly
Fakhoury v. O’Reilly involved a variety of claims stemming from the City of Dearborn’s treatment of a real estate developer. The district court denied qualified immunity to two city officials, who then appealed. But in that appeal, the defendants “disingenuously claim[ed] that they accept[ed] Plaintiff’s version of the facts and then challenge[d] the district court’s factual findings and inferences at every chance in their briefs.” The defendants also tried to invoke the blatant-contradiction exception to the normal limit on fact-based qualified-immunity appeals. The Sixth Circuit rejected all factual arguments. But rather than dismiss the appeal, the court ignored the defendants’ attempts to dispute the facts and separately addressed the core qualified immunity issues: taking the facts as the district court saw them, did the the defendants violate the plaintiff’s clearly established federal rights?
Fakhoury v. O’Reilly, 2020 WL 6781730 (6th Cir. Nov. 18, 2020), available at the Sixth Circuit and Westlaw.
The Fourth Circuit Said No Pendent Appellate Jurisdiction in a Sovereign-Immunity Appeal
In Glover v. City of Norfolk, the Fourth Circuit dismissed a city’s attempt to appeal a vicarious-liability issue alongside its sovereign-immunity.
Details are few. But the city appealed from the district court’s refusal to dismiss a maritime action against it. The Fourth Circuit had jurisdiction to review the denial of sovereign immunity; the Supreme Court has held that defendants can appeal these denials via the collateral-order doctrine. But the Fourth Circuit lacked jurisdiction to review the district court’s refusal to dismiss vicarious-liability claims on their merits. The city argued that it could not be liable because its employees had been granted qualified immunity. But that argument did not involve an immunity from suit. It was instead a defense to liability. And “the district court’s ruling on vicarious liability [could] be reviewed on appeal after a final judgment just as a Monell claim can.” The Fourth Circuit also declined to exercise pendent appellate jurisdiction over the vicarious-liability claims.
Glover v. City of Norfolk, 2020 WL 6778953 (4th Cir. Nov. 18, 2020), available at the Fourth Circuit and Westlaw.