Stipulated judgments, state sovereignty, governmental privileges, and more.
September 9, 2019
Last week saw further developments in the emoluments appeals, a helpful discourse on appealing stipulated judgments, a proper approach to governmental-privilege appeals, and even an application of the administrative-remand rule.
The D.C. Circuit accepted the certified appeal in the emoluments suit brought by members of Congress
The D.C. Circuit accepted the certified appeal in one of the emoluments suits. You might recall that in the emoluments suit brought by members of Congress, the district court had declined to certify its decision denying Trump’s motions to dismiss. Trump then sought a writ of mandamus from the D.C. Circuit, asking the court to either reverse the denial of the motions to dismiss or direct the district court to certify the decisions for an immediate appeal under 28 U.S.C. § 1292(b).
The D.C. Circuit denied mandamus on both issues. But it also suggested that the district court rethink its refusal to certify the issue.
Back before the district court, that court certified its decisions for an immediate appeal. Trump then petitioned to appeal, and on September 4, 2019, the D.C. Circuit granted the petition.
The D.C. Circuit thus avoided weighing in on whether mandamus can be used to reverse a district court’s refusal to certify an issue for immediate appeal under § 1292(b). The Fourth Circuit recently held that it could do so in another emoluments suit. This was a troubling move, as mandamus should probably not be used for that purpose.
I don’t have a publicly available link to the D.C. Circuit’s order accepting the appeal, but there was really nothing to see there.
The Fourth Circuit on appeals from stipulated judgments
In Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, the Fourth Circuit addressed one of Sprint’s suits against cell-phone arbitrageurs. But before doing so, the court had to assure itself of its jurisdiction. After the district court granted Sprint summary judgment on liability, the parties stipulated to the amount of damages. Defendant Wireless Buybacks then sought to appeal the summary-judgment decision.
Stipulations like this can raise jurisdictional issues. Courts are wary of parties “stipulating” to claims or parts of claims but conditioning those purported stipulations on the outcome of an appeal. The concern is that parties will circumvent the final-judgment rule by pausing litigation via a conditional resolution of claims, appeal, and then reinstate those claims after the appeal.
But true stipulations—those that are binding on the parties and cannot be undone by the appeal—are a good thing. They remove issues or theories from dispute, streamlining litigation as parties resolve issues on their own.
The stipulation in Wireless Buybacks was a good one. True, the stipulation was in some ways conditional—a reversal on liability would mean that Wireless Buybacks would not have to pay the stipulated damages. But the parties did not purport to reserve the right to re-litigate the amount of damages. They had instead conditioned the payment of damages (not their amount) on the scope of liability. And that’s a perfectly sensible stipulation. Damages often depend on the scope of liability, and the stipulation can avoid long and expensive proceedings on the amount of damages. All that mattered was that the stipulation was a binding one—it would not disappear if the court of appeals reversed.
These stipulations raise interesting issues. I might have more to say on them later this week.
Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, 2019 WL 4197239 (4th Cir. 2019), available at the Fourth Circuit and Westlaw.
The Federal Circuit held that an order rejecting a state-sovereignty argument and transferring a case was immediately appealable
In Board of Regents of the University of Texas System v. Boston Scientific Corp., the Federal Circuit held that state sovereignty did not entitle the University of Texas to sue in an otherwise improper forum. Patently-O has a write up of the venue issue. But there was also an appellate-jurisdiction issue of whether the University could appeal the transfer order.
The University of Texas owns patents for fibers used in medical implants (like stents). Believing that Boston Scientific was infringing those patents, the University sued in the Western District of Texas. The University acknowledged that Boston Scientific was a Delaware corporation with its principle place of business in Massachusetts. But it contended that venue was proper because the University has sovereign immunity: as an arm of the state, it would offend the state’s dignity to compel the University to litigate outside of Texas. The district court dismissed the University’s complaint for improper venue and transferred the case to the District of Delaware.
The University of Texas then appealed the transfer order to the Federal Circuit. Transfer orders are normally not immediately appealable. But the Federal Circuit held that this one was because of the state sovereignty issues. The Supreme Court has held that the denial of a sovereign-immunity claim is immediately appealable under the collateral-order doctrine; the immunity is a right not to be sued that must be immediately vindicated on appeal or forever lost. And although the state-sovereignty principles invoked by the University of Texas were not the same as the state-sovereign immunity principles that the Supreme Court had addressed, they invoked similar dignity interests in not litigating under conditions to which the state did not consent.
Board of Regents of the University of Texas System v. Boston Scientific Corp., 2019 WL 4196997 (Fed. Cir. 2019), available at the Federal Circuit and Westlaw.
The Second Circuit rejected an attempted governmental-privilege appeal
In NAACP v. East Ramapo Central School District, the Second Circuit dismissed school board members’ attempt to appeal a discovery order. The non-party board members had been ordered to sit for depositions. And in ordering them to do so, the district court had rejected their claim of legislative immunity. The board members then sought to appeal under the collateral-order doctrine. They argued that the discovery order rejected a claim of official immunity. And denials of immunity are normally appealable collateral orders.
But the board members’ characterization of the issues was inaccurate. They were claiming an evidentiary privilege, not an immunity from litigation. They accordingly had to take the normal route if they wanted to appeal the discovery order: disobey, be held in contempt, appeal the contempt, and in that appeal challenge the underlying discovery order.
You might recall that a few weeks ago the Fifth Circuit applied its contrary rule—that discovery orders rejecting claims of governmental privilege are immediately appealable. See this post for why that rule is wrong.
NAACP v. East Ramapo Central School District, 2019 WL 4197116 (2d Cir. 2019), available at the Second Circuit and Westlaw.
The Sixth Circuit got pendent appellate jurisdiction right in a qualified-immunity appeal
In McGrew v. Duncan, the Sixth Circuit held that police officers were not entitled to qualified or governmental immunity for throwing the plaintiff to the ground, handcuffing her, and threatening to kill her. In the course of doing so, the court rejected pendent appellate jurisdiction over the denials of summary judgment on other claims. It said that to exercise pendent appellate jurisdiction over a normally non-appealable order, the court “must be unable to resolve the properly appealable issue without addressing the nonappealable one.” And because the court could resolve the appealable issues (governmental immunity over some state law claims) without resolving the normally non-appealable ones, it would not extend pendent appellate jurisdiction.
This is the proper way to approach pendent appellate jurisdiction in the qualified-immunity context. Far too often courts hearing an interlocutory qualified-immunity appeal will extend pendent appellate jurisdiction over other, normally non-appealable issues if resolution of the qualified-immunity appeal will resolve those other issues. But that’s backwards. The point of pendent appellate jurisdiction is not to reach out to resolve other issues that the interlocutory appeal necessarily resolved; it’s to reach normally non-appealable issues that are necessary to deciding the properly appealable one.
McGrew v. Duncan, 2019 WL 4180465 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
Other decisions
In Cooper Clark Foundation v. Oxy USA Inc., the Tenth Circuit heard a discretionary appeal from a CAFA remand. The case involved three class actions in Kansas state court that had been consolidated. After consolidation, the defendant removed all three, aggregating the damages to reach CAFA’s amount-in-controversy requirement of $5 million. The Tenth Circuit granted the plaintiffs’ petition to appeal to address whether consolidation allowed this aggregating of damages to reach the amount-in-controversy requirement, and it held that aggregation was not allowed.
And in Cherokee Nation v. Bernhardt, the Tenth Circuit applied the administrative-remand rule to hold that an order remanding a dispute to the Bureau of Indian Affairs was immediately appealable.
When district courts review administrative agency adjudication, they sometimes will remand the dispute back to the agency for further proceedings. Courts have held that these remands are normally not appealable; immediate appeals could disrupt administrative proceedings and lead to piecemeal review, while delaying appeals until after further agency proceedings would consolidate all issues into a single appeal. But courts have created exceptions to this general rule when the lack of an immediate appeal from an administrative remand might leave a party (most commonly the government) without any chance for appellate review.
That was the case in Cherokee Nation v. Bernhardt. The case involved a dispute over the establishment of tribal land for the United Keetoowah Band of Cherokee Indians in Oklahoma. The Bureau approved the Keetoowah Cherokee’s application, but the Cherokee Nation of Oklahoma successfully challenged that decision in the district court. The district court held (among other things) that the Keetoowah Cherokee’s application could not be approved without the Cherokee Nation’s consent. And that consent was not forthcoming. Treating the district court’s decision as not appealable thus might have forever prevented appellate review; without the Cherokee Nation’s consent, there was nothing for the Bureau to do and thus no subsequent events that would make the district court’s decision any more final.
If you’re interested in the administrative-remand rule, I discussed it—and its roots in Gillespie v. U.S. Steel Co.’s pragmatic balancing approach—on pages 383–93 of my article Dizzying Gillespie.
Cooper Clark Foundation v. Oxy USA Inc., 2019 WL 4200433 (10th Cir. 2019), available at the Tenth Circuit and Westlaw.
Cherokee Nation v. Bernhardt, 2019 WL 4197483 (10th Cir. 2019), available at the Tenth Circuit and Westlaw.
Cert filing
Finally, the reply brief in support of cert was filed in Xitronix Corp. v. KLA-Tencor Corp. The case—which I’ve talked about previously on this site—involves the Federal Circuit’s jurisdiction over Walker Process claims.
Reply Brief in in Support of Petition for a Writ of Certiorari, Xitronix Corp. v. KLA-Tencor Corp., No. 19-58, available at the Supreme Court.