The Week in Federal Appellate Jurisdiction: November 29–December 5, 2020

Last week saw several courts hold that they lacked jurisdiction over a variety of appeals. Indeed, I found only one case of note in which the court actually had appellate jurisdiction. Still, there are some interesting decisions, including an illustration of the odd “colorable” requirement for double jeopardy appeals. Let’s start with an appeal from two post-judgment orders, one timely and one not.

• The Tenth Circuit on the Timeliness of Post-Judgment Appeals
• The Sixth Circuit on “Colorable” Double Jeopardy Appeals
• This Week’s Improper Qualified-Immunity Appeal
• Quick Notes

The Tenth Circuit on the Timeliness of Post-Judgment Appeals

In United States v. Walker, the Tenth Circuit held that part of a post-judgment appeal was untimely because the two post-judgment decisions were each independently appealable.

The defendant in Walker was convicted of mail fraud in connection with a business that he and other members of his church operated. He later successfully challenged his sentence under 28 U.S.C. § 2255, arguing that his counsel was ineffective because the church’s pastor dictated counsel’s strategy. At the defendant’s request, the district court also sealed the transcript of the § 2255 hearing. The church subsequently asked the district court judge for two things: access to the transcript and to recuse herself. The judge refused both requests. The church then sought reconsideration of only the recusal decision, which the district court denied a few weeks later. Roughly two months after that, the church appealed both decisions.

The Tenth Circuit held that the appeal from the access order was late. Post-judgment orders denying access to sealed records are final and thus immediately appealable. The church accordingly had 60 days (not 30 days, since the case involved the United States) to appeal the denial of access to the transcript. So its appeal from that order was untimely. Granted, the appeal was timely as to the denial of reconsideration on the recusal order. But the two decisions were separately appealable, and the church could not wait until the district court had definitively resolved both issues to appeal.

On the merits of the recusal order, the Tenth Circuit affirmed.

United States v. Walker, 2020 WL 7053769 (10th Cir. Dec. 2, 2020), available at the Tenth Circuit and Westlaw.

The Sixth Circuit on “Colorable” Double Jeopardy Appeals

In United States v. Willis, the Sixth Circuit held that it lacked jurisdiction over a double jeopardy appeal because the claim was not “colorable.”

The defendant in Willis was charged in federal court with being a felon in possession of a firearm. He moved to dismiss the charges, arguing that the federal prosecution violated his rights under the double jeopardy clause given a prior state gun charge. The district court denied that motion, and the defendant appealed.

Denials of a double jeopardy defense are immediately appealable via the collateral-order doctrine. But the defense must be “colorable”—the defendant must have some chance of success. The defendant in Willis, the Sixth Circuit concluded, had no chance of success. He had been charged with different crimes by different sovereigns, and the “sham-prosecution” exception did not apply.

Note, this “colorable” requirement is a silly one. It requires that the court evaluate the merits of an appeal to determine whether it has jurisdiction. The analysis would be no different if the court simply had jurisdiction over the interlocutory appeal and proceeded straight to the merits. Willis illustrates this silliness well. The Sixth Circuit considered and rejected all of the defendant’s grounds for his double jeopardy defense. Then, having determined that the defendant’s double jeopardy claims failed on their merits, the court concluded that it lacked appellate jurisdiction and dismissed the appeal.

United States v. Willis, 2020 WL 7038404 (6th Cir. Dec. 1, 2020), available at the Sixth Circuit and Westlaw.

This Week’s Improper Qualified-Immunity Appeal

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 to resolve. 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, the Ninth Circuit dismissed one of these fact-based appeals. Peterson v. City of Yakima involved First Amendment-retaliation claims. The opinion is light on details. But according to the district court, a reasonable jury could find that the defendants were aware that the plaintiff engaged in First Amendment-protected activities. The defendants nevertheless appealed the denial of qualified immunity to argue that they did not know of the plaintiff’s First Amendment-protected activities. The defendants thus disputed the factual basis for the denial of immunity, and the Ninth Circuit lacked jurisdiction over their appeal:

Appellants thus mischaracterize an issue of fact (namely, whether the evidence is sufficient to find that they had knowledge of [the plaintiff]’s protected activities) as an issue of law that is premised on a lack of evidence of such knowledge. Appellants’ true dispute concerns sufficiency of the evidence. We have no jurisdiction over it.

Peterson v. City of Yakima, 2020 WL 7024533 (9th Cir. Nov. 30, 2020), available at the Ninth Circuit and Westlaw.

Quick Notes

In In re QDOS, Inc., the Ninth Circuit dismissed an appeal from an order remanding a bankruptcy action for further proceedings. The bankruptcy court had dismissed the involuntary bankruptcy petition filed against the debtor. But the Bankruptcy Appellate Panel reversed that decision and remanded for further proceedings.

The debtor then appealed to the Ninth Circuit. But the Ninth Circuit held that the Panel’s decision was not final. To be final and appealable, a Panel decision must fix the parties’ rights and obligations. The Panel’s decision in QDOS did not do so. It instead ordered further proceedings to determine those rights and obligations.

In re QDOS, Inc., 2020 WL 7024539 (9th Cir. Nov. 30, 2020), available at the Ninth Circuit and Westlaw.

In United States v. Sherrill, the Sixth Circuit heard an immediate appeal from an involuntary-medication order. The defendant in Sherrill had been deemed incompetent to stand trial for several drug charges. The district court eventually ordered that he be involuntarily medicated to restore his competency.

The defendant then appealed. And under Sell v. United States, these involuntary-medication orders are final and appealable under the collateral-order doctrine. On the merits, the Sixth Circuit affirmed the involuntary-medication order.

United States v. Sherrill, 2020 WL 7038618 (6th Cir. Dec. 1, 2020), available at the Sixth Circuit and Westlaw.

And in Givens v. Newsom, the Ninth Circuit dismissed an appeal from the denial of a temporary restraining order related to California’s COVID-19 response. The case is short on details but appears to challenge some of California’s COVID-19 related public-health directives. The district court denied the plaintiffs’ request for a temporary restraining order against those directives. The plaintiffs then tried to appeal.

Although parties can immediately appeal many orders involving injunctions, the grant or denial of a temporary restraining order is normally not appealable. Some exceptions to the general bar on appealing TROs exist, such as when the district court conducted a full evidentiary hearing and effectively foreclosed the possibility of any injunctive relief. But none of those exceptions applied in Givens. Although the district court held an evidentiary hearing, it also invited the plaintiffs to submit more evidence and stated that it was open to considering interlocutory relief after the case developed.

Givens v. Newsom, 2020 WL 7090826 (9th Cir. Dec. 4, 2020), available at the Ninth Circuit and Westlaw.