Fact-based qualified-immunity appeals, pendent appellate jurisdiction in injunction and immunity appeals, early and effective notices of appeal, and the finality of an administrative closure after ordering arbitration.
November 2, 2021
After several relatively uneventful weeks, last week saw a variety of interesting appellate-jurisdiction decisions.
Two courts addressed pendent appellate jurisdiction issues. In an injunction appeal, the Ninth Circuit refused to extend pendent appellate jurisdiction to an order dismissing some claims. And in a state-sovereign-immunity appeal, the First Circuit addressed the plaintiffs’ standing. Several courts addressed the timing and adequacy of notices of appeal. All of these decisions thankfully deemed the notices effective. And the Fifth Circuit dismissed an appeal from an arbitration order; the district court’s closing the case did not amount to an appealable dismissal.
Let’s start, however, with the Tenth Circuit’s response to a fact-based qualified-immunity appeal.
- The Tenth Circuit Dismissed Factual Challenges to the Denial of Qualified Immunity
- The Ninth Circuit Declined to Extend Pendent Appellate Jurisdiction in an Injunction Appeal
- The First Circuit Addressed Standing in a State-Sovereign-Immunity Appeal
- The First Circuit on Relating Forward Notices of Appeal
- The Eleventh Circuit on Effective Notices of Appeal
- The Third Circuit on Early and Effective Notices of Appeal
- The Fifth Circuit Dismissed an Arbitration Appeal Despite the District Court’s Closing the Case
The Tenth Circuit Dismissed Factual Challenges to the Denial of Qualified Immunity
In Simpson v. Little, the Tenth Circuit largely dismissed an appeal from the denial of qualified immunity because the defendant challenged the factual basis for the denial.
The Simpson Litigation
Simpson arose from the fatal shooting of a motorist. A police officer had pursued the motorist to the end of a street, where the motorist then attempted to turn around. As the motorist executed a three-point turn, the officer exited his vehicle and ordered the motorist to stop. The motorist did not stop, and the officer fired ten times. Two bullets struck the motorist, who later died. The motorist’s estate sued the officer for excessive force, and the officer eventually moved for summary judgment on qualified-immunity grounds.
The district court denied that motion. According to the district court, a reasonable jury could find that the motorist’s car had passed by the police officer by the time the officer fired. A video of events showed that the officer was never in the path of the car. In fact, the motorist appeared to drive in a way that would avoid hitting the officer. The bullets also struck the side and rear of the vehicle, indicating that the motorist had passed the officer at the time the officer fired. Were a jury to find that these facts were true, the motorist posed no threat to the officer or anyone else that would justify the use of deadly force.
The Fact-Based Appeal
The officer then appealed to the Tenth Circuit. But in that appeal, the officer argued that the motorist’s vehicle was in front of him—bearing down on him—when he fired.
That was a problem. Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited when the district court denies immunity at summary judgment. 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.
The Tenth Circuit accordingly dismissed much of the officer’s appeal. As to each of the officer’s factual arguments, “the district court found a reasonable jury could infer facts to conclude otherwise.” And even assuming that the officer invoked an exception to the general bar on reviewing the genuineness of fact disputes, none applied.
Another Improper Qualified-Immunity Appeal
Simpson provides another example of how defendants regularly flout the 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 normally 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. The defendant in Simpson appealed last November, and the district court’s docket reveals no activity of substance in the intervening 11 months. Appeals like Simpson 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.
Simpson v. Little, 2021 WL 4955457 (10th Cir. Oct. 26, 2021), available at the Tenth Circuit and Westlaw.
The Ninth Circuit Declined to Extend Pendent Appellate Jurisdiction in an Injunction Appeal
In CDK Global LLC v. Brnovich, the Ninth Circuit refused to review the dismissal of some claims alongside an preliminary-injunction appeal.
Simplifying a bit, CDK Global involved a challenge to an Arizona law governing the data-management software used by car dealers. Providers of that software sued to enjoin the law, asserting a variety of statutory and constitutional claims. The district court initially dismissed many of the claims, leaving only the plaintiffs’ copyright-preemption, Contracts Clause, and Takings Clause claims. The district court later denied a preliminary injunction against enforcement of the law. The plaintiffs then appealed.
The Ninth Circuit’s jurisdiction over the denial of a preliminary injunction was secure—28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to review most decisions concerning an injunction. The plaintiffs also asked the Ninth Circuit to extend pendent appellate jurisdiction over the order dismissing many of their claims. Pendent appellate jurisdiction allows a court of appeals to exercise jurisdiction over a normally non-appealable order alongside an appealable one. But most courts require either that the pendent issue be “inextricably intertwined” with the appealable one, or that review of the pendent issue be necessary to meaningfully review the appealable one.
Neither condition was satisfied in CDK Global. The dismissed claims were “entirely separate from the issues addressed in the preliminary-injunction order.” So reviewing that order did not require addressing the dismissed claims. Indeed, the plaintiffs had amended their complaint after the district court dismissed most of their claims, and that amended pleading excluded the dismissed claims. The claims were thus no longer part of the suit and could not properly affect the injunction decision.
CDK Global LLC v. Brnovich, 2021 WL 4944824 (9th Cir. Oct. 25, 2021), available at the Ninth Circuit and Westlaw.
The First Circuit Addressed Standing in a State-Sovereign-Immunity Appeal
In Doe v. Shibinette, the First Circuit reviewed the plaintiffs’ standing alongside an interlocutory order rejecting the defendant’s state sovereign immunity defense.
The plaintiffs in Doe sued the Commissioner of the New Hampshire Department of Health and Human Services, alleging that the state had held people for emergency mental-health treatment in violation of due process. The district court denied the Commissioner’s motion to dismiss. The Commissioner then appealed from the denial of state sovereign immunity.
The First Circuit had jurisdiction over that appeal via the collateral-order doctrine. The court said that it could also review the plaintiff’s standing as part of that appeal. Standing, the court noted, “is a prerequisite to a federal court’s subject matter jurisdiction.” And federal courts normally must assure themselves of their subject-matter jurisdiction before addressing a case’s merits. The First Circuit accordingly said that it could “review a challenge to standing on an appeal from the denial of immunity.”
This review of standing alongside a state-sovereign-immunity appeal is an exercise of pendent appellate jurisdiction. And it’s one on which the courts of appeals have split. The Eleventh Circuit, for example, recently refused to address standing as part of a qualified-immunity appeal.
Doe v. Shibinette, 2021 WL 4958249 (1st Cir. Oct. 26, 2021), available at the First Circuit and Westlaw.
The First Circuit on Relating Forward Notices of Appeal
In Bautista Cayman Assets Co. v. Asociación de Miembros de la Policía de Puerto Rico, the First Circuit held that the subsequent dismissal of all unresolved claims saved a premature notice of appeal.
Bautista Cayman was a mortgage foreclosure action. In addition to suing the debtor, the plaintiff also named the United States as a defendant due to government liens on the debtor’s property. The district court eventually entered judgment for the plaintiff, and the defendant appealed. But at that time, the plaintiff’s claims against the United States was still pending. There was accordingly no final decision, and the notice of appeal was premature.
When the First Circuit pointed this out, the plaintiff voluntarily dismissed its claims against the United States. This dismissal, the First Circuit said, saved the premature notice. Like nearly every other court of appeals, the First Circuit holds that a premature notice of appeal can be saved by a subsequent final decision so long as the appeal was from a decision that resolved some of the claims in a multi-claim action. There was some confusion over the First Circuit law on this issue a year or so ago, but the matter now appears well settled. The premature notice of appeal in Bautista Cayman thus related forward to the dismissal of all unresolved claims.
Bautista Cayman Assete Co. v. Asociación de Miembros de la Policía de Puerto Rico, 2021 WL 5027511 (1st Cir. Oct. 29, 2021), available at the First Circuit and Westlaw.
The Eleventh Circuit on Effective Notices of Appeal
In Booth v. Allen, the Eleventh Circuit determined that a pro se plaintiff’s letter to the district court was effectively a notice of appeal.
The plaintiff in Booth did not file a formal notice of appeal within the time for appealing. He did, however, send a letter to the district court during the appeal window in which he indicated an intent to appeal:
[T]he district court received a letter from Booth . . . stating that he was “trying to find out if the ruling on [his] Notice of Appeal and in forma pauperis paperwork was granted so [he] can move on to the next phase in this civil action which would be the [C]ourt of Appeals for the Eleventh Circuit.”
“A document not strictly compliant with the requirements of [Federal Rule of Appellate Procedure 3] may still be construed as a notice of appeal where it (1) serves as the functional equivalent of a notice of appeal and (2) makes it ‘objectively clear that a party intend[s] to appeal.’” The plaintiff’s letter satisfied those requirements. It more or less satisfied all of Rule 3(c)’s content requirements, as it designated the party taking the appeal and the court to which the appeal was taken. The letter didn’t designate a judgment or order. “But given its timing and context, there [was] ‘no genuine doubt’ as to what order Booth intended to appeal.” And the letter made clear that the plaintiff wanted to appeal.
Booth v. Allen, 2021 WL 4978161 (11th Cir. Oct. 26, 2021), available at the Eleventh Circuit and Westlaw.
The Third Circuit on Early and Effective Notices of Appeal
In Garett v. Murphy, the Third Circuit addressed both an early notice of appeal and an effective second notice of appeal.
The district court in Garett dismissed the plaintiff’s complaint without prejudice and with leave to amend. Rather than amend, the plaintiff appealed. The district court then dismissed the complaint with prejudice and entered a final judgment.
The notice of appeal, the Third Circuit said, was premature and thus ineffective: “a notice of appeal must be filed within thirty days ‘after the entry’ of judgment, not before entry of judgment.” (The Third Circuit has what is perhaps the most generous rule on relating forward notices of appeal, though the court did not mention that possibility.) The court nevertheless determined that something the plaintiff had filed in that court during the appeal window was an effective second notice of appeal. “The document, labeled ‘2nd Notice,’ cited the docket number for the District Court proceeding, named the parties, and asserted the plaintiff’s ‘right’ to bring suit before the Third Circuit after a final judgment.” (Cleaned up.) That this document was filed with the court of appeals was irrelevant; Federal Rule of Appellate Procedure 4(d) says that a notice mistakenly filed with the court of appeals is deemed filed in the district court.
Garett v. Murphy, 2021 WL 5026787 (3d Cir. Oct. 29, 2021), available at the Third Circuit and Westlaw.
The Fifth Circuit Dismissed an Arbitration Appeal Despite the District Court’s Closing the Case
In Sanchez v. Marathon Oil Co., the Fifth Circuit said that it lacked jurisdiction to review a decision ordering arbitration despite the district court seemingly closing the case.
Although decisions ordering arbitration are normally not immediately appealable, several courts have held that they are if the district court subsequently dismisses (rather than stays) the action. The dismissal produces a final decision, these courts say, which is appealable.
The district court in Sanchez ordered arbitration. But it did not say whether the case was stayed or dismissed. The district court clerk had created a docket entry saying that the case was “terminated,” and the docket sheet said that the case was “closed.” The arbitration order, however, was silent on the matter.
The Fifth Circuit determined that the absence of any termination language in the arbitration order meant that the case was not dismissed. The docket notations reflected an “administrative closure, not a final order of dismissal.” With the case effectively stayed, the plaintiff could not appeal.
Sanchez v. Marathon Oil Co., 2021 WL 4995483 (5th Cir. Oct. 27, 2021), available at the Fifth Circuit and Westlaw.