A cert grant on immigration appeals, more mandamus/§ 1292(b) issues, injunction appeals, forfeiture orders, and more.
October 21, 2019
Last week was busy. The Fourth Circuit granted rehearing en banc in its emoluments/mandamus/§ 1292(b) case. And the Fifth Circuit had its own run-in with mandamus and § 1292(b). And there were several other decisions of interest and cert-stage filings. But we’ll start with the Supreme Court’s newest appellate-jurisdiction case.
Cert granted in Nasrallah v. Barr
The Supreme Court granted cert in Nasrallah v. Barr, adding another appellate-jurisdiction issue to this year’s term. (That makes five.) The case asks if the jurisdiction-stripping provisions in the immigration laws prohibit an appellate court from reviewing whether a petitioner would be tortured upon being deported. I wrote a bit about this issue when the petition was filed.
Argument is not yet scheduled.
Rehearing en banc granted in the Fourth Circuit’s emoluments decision
The Fourth Circuit granted rehearing en banc in In re Trump, which asks whether Maryland and the District of Columbia have standing to sue Donald Trump for violating the emoluments clause.
In July, a Fourth Circuit panel held that the two plaintiffs lacked standing. But before reaching that decision, the panel first had to secure appellate jurisdiction. It did so by using mandamus to reverse the district court’s refusal to certify its standing decision for an immediate appeal under 28 U.S.C. § 1292(b).
The petition for rehearing en banc challenged both aspects of the panel’s decision—mandamus and standing. I don’t know which the en banc court is more interested in addressing. But I agree with Maryland and D.C. that the panel’s use of mandamus was wrong and will likely have bad consequences. I criticized that decision at the time, as did Alan Morrison in a guest post on this site.
You might also recall that the D.C. Circuit purported to deny a similar request for mandamus. But that court also said that the district court was wrong in refusing to certify the decision for a § 1292(b) appeal and told the district court to re-examine that decision. (Which the district court did, certifying the case for an interlocutory appeal that the D.C. Circuit then accepted.)
Argument is scheduled for December 12, 2019.
The Fifth Circuit has its own mandamus/§ 1292(b) decision
In In re Gee, the Fifth Circuit declined to issue a writ of mandamus to decide the plaintiff’s standing to sue. But the court told the district court to address the matter. The court also appears to have used the mandamus denial to suggest that § 1292(b) certification of the merits was proper.
Gee involved a constitutional challenge to Louisiana’s abortion restrictions. According to the Fifth Circuit, the plaintiffs in Gee challenged almost all of Louisiana’s laws governing abortion. And the plaintiffs argued that the cumulative effect of those laws rendered them unconstitutional. Louisiana challenged both the plaintiffs’ standing—as they had apparently challenged abortion restrictions that did not apply to them—and their legal theory—arguing that the cumulative-effects theory was improper. The district court denied Louisiana’s motions to dismiss. But in doing so, the district court did not address Louisiana’s standing arguments. And although the district court initially certified the cumulative-effects issue for an immediate appeal under § 1292(b), it reversed that certification before Louisiana could appeal. Louisiana then sought a writ of mandamus from the Fifth Circuit.
The Fifth Circuit ultimately rejected the petition for mandamus. The district court should have addressed standing. But after discussing the merits of standing at length, the court of appeals decided to give the district court another chance to address the matter itself.
The Fifth Circuit also noted that much of the state’s petition went to the merits issue: the validity of the plaintiffs’ cumulative-effects theory. The court of appeals wondered why the district court did not certify the issue for a § 1292(b) appeal. According to Gee, the theory was unprecedented. And if the district court certified its decision for an appeal, many of the issues could be resolved without resort to mandamus. The panel ended by stating that it would retain jurisdiction over any decision whether to grant a petition for appeal as well as any subsequent petitions for mandamus “should the district court deny certification or fail to resolve the State’s jurisdictional challenges.”
It thus appears that we have another instance of a court using the denial of mandamus to more or less tell a district court to certify an interlocutory appeal.
In re Gee, 2019 WL 5274960 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.
The Seventh Circuit split on its separate-document requirement for appeals from injunctions
In MillerCoors LLC v. Anheuser-Busch Co., a divided panel of the Seventh Circuit remanded an appeal from an injunction because the district court had not set out the terms of the injunction in a separate document.
The suit involves MillerCoors’s false-advertising claim against Anheuser-Busch, stemming from Anheuser-Busch’s commercials about MillerCoors’s use of use of corn syrup in brewing some of its beer. The district court issued a preliminary injunction ordering Anheuser-Busch to stop using certain language in its advertisements. Apparently unsatisfied with that injunction, MillerCoors appealed.
But the Seventh Circuit remanded the appeal for the district court to comply with Rule 65(d). As the panel majority read the rule—and as several prior Seventh Circuit decisions seemed to hold—Rule 65(d) requires that the terms of an injunction be set out in a separate document. That is, the district court cannot state the terms of an injunction in an opinion and order; it must set them out separately. The district court in MillerCoors had not done so. While it was clear enough that the district court intended to order some injunctive relief—and thus appellate jurisdiction was secure—the panel majority thought that enforcing Rule 65(d)’s requirements was important enough to order a limited remand for the district court to set out the terms of the injunction.
Dissenting, Judge Hamilton contended that nothing in Rule 65(d) actually requires that the terms of an injunction be set out in a separate document. Indeed, “text and pragmatics” suggested the opposite: “We need not remand for formalistic compliance with an imagined and non-jurisdictional rule that no party has raised.” Judge Hamilton also pointed out the separate-document rule’s potential implications for other interlocutory appeals:
The universe of nonfinal appealable orders is not small. Its exact bounds cannot always be determined in advance by a district court. The majority’s rule would seem to require high-church, Rule 58-compliant separate documents, not only for grants of preliminary injunctions but also, for example, for any order denying or “refusing to . . . modify” a preliminary injunction, any mine-run Rule 12(b)(6) or Rule 56 order denying qualified immunity, and every other collateral order subject to interlocutory appeal.
According to Judge Hamilton, although the Seventh Circuit had suggested a separate-document rule in prior decisions, none of them actually required a separate document. And the terms of the injunction in MillerCoors were sufficiently clear for the parties to know their duties and for the court to hear the appeal.
MillerCoors LLC v. Anheuser-Busch Co., 2019 WL 5280872 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.
The First Circuit held that a district court could enter a forfeiture order after the defendant had appealed
In United States v. Carpenter, the First Circuit held that a district court had jurisdiction to enter a forfeiture order even though the defendant had filed a notice of appeal from his sentencing.
The defendant in Carpenter was convicted for nineteen counts of mail and wire fraud. The sentencing judgment stated that he would forfeit some amount of money, but the district court did not specify that amount and instead scheduled a hearing to determine it. But before the district court could set the amount to be forfeited, the defendant filed a notice of appeal. The next week, the district court entered a $14 million forfeiture order, after which the defendant filed a supplemental notice of appeal.
The First Circuit rejected the defendant’s argument that his initial notice of appeal deprived the district court of jurisdiction to specify the amount of the forfeiture. Granted, a proper notice of appeal normally divests the district court of authority to address the matters that are now on appeal. But a notice of appeal’s filing does not divest the district court of all authority. Further, the general divestiture rule is not jurisdictional: “[a]pplication of the rule is not mandatory and efficiency concerns are central to determining whether [the court] should apply it.”
In Carpenter, there was no risk of shared jurisdiction: the court saw no overlap in the appeal from the sentence and the subsequent appeal from the forfeiture order. The First Circuit accordingly held that the district court had jurisdiction to enter the amount of the forfeiture. On the merits, the court of appeals affirmed the forfeiture order.
United States v. Carpenter, 2019 WL 5287926 (1st Cir. 2019), available at the First Circuit and Westlaw.
The Ninth Circuit addressed state sovereign immunity in a removed action
In Walden v. Nevada, the Ninth Circuit held that a state’s decision to remove an action to federal court waived state sovereign immunity over all federal claims. But before addressing that issue, the court had to assure itself of appellate jurisdiction.
The case involved correctional officers’ Fair Labor Standards Act claims against the state of Nevada. The officers sued in state court, but Nevada removed the case to federal court. The state then moved to dismiss for state sovereign immunity. But the district court denied that motion to dismiss, holding that Nevada had waived immunity by removing the case. Nevada then appealed.
Denials of state sovereign immunity can be immediately appealed under the collateral-order doctrine. But the Ninth Circuit has held that these appeals are available only when a state asserts immunity from suit. If it asserts an immunity only from liability, the rationale for the immediate appeal no longer applies, and the state must wait until after a final judgment before appealing its immunity. In Walden, Nevada was not clear about which immunity it meant to invoke—from suit or from liability. But the state made clear at oral argument that it was asserting both. The Ninth Circuit accordingly held that the appeal was proper; the state was asserting (at least in part) an immunity from suit.
Walden v. Nevada, 2019 WL 5199557 (9th Cir. 2019), available at the Ninth Circuit and Westlaw.
Reply brief in Princeton Digital
The reply brief has been filed in Princeton Digital Image Corp. v. Adobe Inc., a case I’ve been following for a while.
The case gives the Supreme Court a chance to re-explain the reasoning in Microsoft Corp. v. Baker. I have argued that Baker seemed to create the possibility of never-ending district court proceedings:
The plaintiffs in Baker voluntarily dismissed all of their claims with prejudice, and the district court had nothing else to do. But according to the [Supreme] Court, the voluntary dismissal in Baker was not a “final decision” and thus could not be appealed. A final decision is normally defined as one that marks the end of district court proceedings, leaving nothing else for the district court to do but enforce the judgment. That standard definition suggests that the decision in Baker was final. The Supreme Court said, however, that it wasn’t. So it would seem that the district court proceedings in Baker were interminable.
This was an intentionally silly reading of Baker, meant to illustrate the problems that arise when courts build most of an appellate jurisdiction regime atop interpretations of the term “final decision.” The Federal Circuit’s decision in Princeton Digital gave life to this potential silliness by holding that a case was not over in the district court even though all pending claims had been dismissed with prejudice—not only was there no appellate jurisdiction, but the parties needed to go back to the district court and continue litigating.
Baker reached an outcome that I view as undoubtedly correct. But its rationale has invited mischief as to the appeal consequence of voluntarily dismissing a claim with prejudice. The petition in Princeton Digital gives the Court a chance to avoid this mischief.
Reply Brief, Princeton Digital Image Corp. v. Adobe Inc., No. 18-1343, available at the Supreme Court.
New cert petition on qualified-immunity appeals
A new cert petition presents a few questions on the scope of interlocutory qualified-immunity appeals.
The case—Taffe v. Wenger—involves claims for excessive force stemming from a fatal police shooting. The Eleventh Circuit held that the officer who shot the decedent was entitled to qualified immunity. And in doing so, the court appears to have rejected the version of the facts that the district court assumed when denying qualified immunity, concluding that the summary-judgment record contradicted those facts. The Eleventh Circuit also extended pendent appellate jurisdiction to review the denial of summary judgment on the plaintiff’s municipal-liability claim.
The petition asks the Supreme Court to address (among other things) (1) when courts of appeals can reject a district court’s factual assumptions in denying qualified immunity and (2) if courts can extend pendent appellate jurisdiction over other, normally non-appealable claims as part of a qualified-immunity appeal.
The defendants have waived their right to respond.
Petition for a Writ of Certiorari, Taffe v. Wengert, No. 19-486 (Oct. 8, 2019), available at the Supreme Court and Westlaw.