The Week in Federal Appellate Jurisdiction: November 8–14, 2020

There’s little to report from last week. The First Circuit granted rehearing in a decision that cut back on the relation forward of notices of appeal. But the new decision avoided the jurisdictional issue because the merits were straightforward. And a divided Sixth Circuit affirmed the denial of qualified immunity, with the majority and dissent disagreeing over what facts must be taken as true for purposes of the appeal.

• The First Circuit Withdrew Its Decision Limiting Relating Forward Notices of Appeal
• The Sixth Circuit Split on the Facts in a Qualified-Immunity Appeal

The First Circuit Withdrew Its Decision Limiting Relating Forward Notices of Appeal

Disclosure: I filed an amicus brief in support of rehearing in this case.

The First Circuit withdrew its initial opinion in Donahue v. Federal National Mortgage Association and avoided deciding the appellate-jurisdiction issue.

Donahue involved claims against two defendants. The district court dismissed all claims against one, after which the plaintiff filed a notice of appeal. Soon thereafter, the First Circuit asked the parties to address its appellate jurisdiction; claims against the other defendant remained pending, so the district court’s decision did not look final. In response, the plaintiff voluntarily dismissed her claims against the remaining defendant and tried to proceed with the appeal.

In August, the First Circuit held that it lacked jurisdiction over the appeal. According to the court, the subsequent dismissal of a remaining defendant did not save a premature notice of appeal. As I wrote at the time, that decision conflicted with several prior First Circuit decisions. The plaintiff accordingly moved for rehearing.

Last week, the First Circuit granted rehearing. But it avoided answering the jurisdictional issue. There was some dispute as to whether the voluntary dismissal resulted in a final decision. The plaintiff had dismissed her claims against the second defendant without prejudice, which sometimes results in a non-final decision. But that dismissal had been the second voluntary dismissal of those claims, which (under Federal Rule of Civil Procedure 41) means that the dismissal was necessarily with prejudice.

Rather than untangle this jurisdictional knot, the First Circuit used its hypothetical-jurisdiction doctrine “to assume appellate jurisdiction and proceed to the merits, given how clear they are.” And on those merits, the plaintiff lost.

I would have liked to see the First Circuit address the appellate-jurisdiction issue. But at least its prior opinion—which created uncertainty in the First Circuit’s caselaw and, if applied to later cases, would unnecessarily deprive litigants of their right to appeal—is no longer the law.

Donahue v. Federal National Mortgage Association, 2020 WL 6606065 (1st Cir. Nov. 12, 2020), available at the First Circuit and Westlaw.

The Sixth Circuit Split on the Facts in a Qualified-Immunity Appeal

In Johnson v. City of Saginaw, the Sixth Circuit looked to split over its jurisdiction to address a factual dispute as part of a qualified immunity appeal.

The plaintiff in Johnson owned a restaurant where a gunfight broke out. To prevent the plaintiff from hosting future events at the restaurant, the city shut off water service to the building. The plaintiff then sued the city officials, alleging that the city shut off her water without notice, a hearing, or a rational basis. The district court denied the city officials’ request for qualified immunity. According to the district court, a reasonable jury could find that “the shutoff was not reasonably necessary to eliminate an emergency.”

On appeal from the denial of qualified immunity, the defendants argued that the shutoff without notice or a hearing was necessary to avoid future violence at the plaintiff’s restaurant. But that was a factual issue, and the district court’s conclusion that a jury could find otherwise was outside the Sixth Circuit’s interlocutory jurisdiction. The Sixth Circuit went on to affirm the denial of immunity on the plaintiff’s procedural due-process claim.

Judge Sutton dissented from that affirmance. He contended (among other things) that any pre-shutoff process was “impracticable and dangerous,” so the city did not need to provide any pre-shutoff process. The majority responded that the district court had assumed otherwise for the purposes of denying immunity, and the court of appeals lacked jurisdiction to second-guess the district court’s assessment of the summary-judgment record.

Johnson v. City of Saginaw, 2020 WL 6686124 (6th Cir. Nov. 13, 2020), available at the Sixth Circuit and Westlaw.