The continuing chronicle of the Rule 3(c) amendments, evidence-admissibility issues in qualified-immunity appeals, Rule 54(b) partial judgments in qualified-immunity appeals, and more.
September 20, 2022
Last week added to the tale of the Rule 3(c) amendments. Once again, a court overlooked those amendments in discussing whether the order designation in a notice of appeal limited the scope of appeal. And another court—when informed of those amendments—held that they did not apply to a pending case.
In other decisions, a Ninth Circuit concurrence argued that evidence-admissibility issues were within the scope of a qualified-immunity appeal. I disagree. And the Seventh Circuit approved of a Rule 54(b) partial judgment that allowed a plaintiff to cross-appeal alongside a qualified-immunity appeal. Plus an explained grant of a Rule 23(f) petition and a fact-based qualified-immunity appeal.
- The Courts of Appeals & the Rule 3(c) Amendments
- Evidence Admissibility & Qualified-Immunity Appeals
- Rule 54(b) Partial Judgments & Qualified-Immunity Appeals
- Quick Notes
The Courts of Appeals & the Rule 3(c) Amendments
Federal Rule of Appellate Procedure 3(c)(1) requires that appellants designate (among other things) “the judgment—or the appealable order—from which the appeal is taken.” Several courts of appeals had interpreted a prior version of this order-designation requirement to limit the scope of an appeal to the designated order. The Supreme Court recently amended Rule 3(c) to abrogate this practice. But those amendments have not received much welcome in the courts of appeals.
The Tenth Circuit Refused to Apply the Rule 3(c) Amendments to a Pending Appeal
Disclosure: As discussed below, I (along with Sean Marotta) moved to file a brief suggesting rehearing in this case.
In Dawson v. Archambeau, the Tenth Circuit issued a revised opinion, holding that it was neither “just” nor “practicable” to apply the Rule 3(c) amendments to a pending appeal.
I wrote about Dawson a few weeks ago. The plaintiff sued several defendants. The district court initially granted summary judgment for all but one of them. It later granted summary judgment for the last defendant. The plaintiff then appealed. His notice of appeal mentioned the second summary-judgment decision. But it did not mention the first.
In its original opinion, the Tenth Circuit held that only the second summary-judgment decision was within the scope of review. Like several other courts, the Tenth Circuit had read Federal Rule of Appellate Procedure 3(c)’s order-designation requirement to “limit[] [its] jurisdiction.” Because the notice of appeal designated only the second summary-judgment decision, the Tenth Circuit held that it had jurisdiction over only that decision.
As I wrote at the time, this was all wrong. Recent amendments to Rule 3(c) abrogated the practice of using the order-designation requirement to limit the scope of an appeal. So the authority on which Dawson relied has been abrogated. Granted, the notice in Dawson was filed before those amendments took effect. But the amendments should apply to pending appeals.
So I wasn’t happy with the decision. Neither was Sean Marotta, who co-wrote the proposal that led to the Rule 3(c) amendments. So we co-authored an amicus brief pointing out the court’s apparent overlooking of the amendments and suggesting rehearing. (When we moved to file that brief, the plaintiff had not yet sought rehearing. We accordingly got to invoke Federal Rule of Appellate Procedure 2 and ask the Tenth Circuit to suspend any rule that would prevent a non-party suggestion for rehearing. The plaintiff eventually sought rehearing, mooting that issue.)
Last week, the Tenth Circuit issued a modified opinion. The court added a footnote on the retroactivity of the Rule 3(c) amendments:
After Mr. Dawson filed the notice of appeal and his opening brief, a new version of Rule 3 went into effect. We don’t regard it “just” or “practicable” to apply the new rule here because it governs the contents of the notice of appeal, which had already been filed. See Order (Roberts, C.J.) (Apr. 14, 2021).
The Tenth Circuit accordingly reached the same outcome: the designation of one summary-judgment decision placed the other summary-judgment decision outside of the court’s appellate jurisdiction. The court also denied our motion to file an amicus brief as moot.
I’ll have more to say about this decision soon.
Dawson v. Archambeau, 2022 WL 4242831 (10th Cir. Sep. 15, 2022), available at the Tenth Circuit and Westlaw
Another Court of Appeals Overlooked of the Rule 3(c) Amendments
Another court failed to acknowledge the amendments to Rule 3(c). Thankfully the court didn’t limit the scope of appeal—it found an exception to the rule on designating orders in a notice of appeal (which is no longer the rule).
In United States v. City of Fort Smith, the district court issued two orders interpreting a consent decree. A party to the decree appealed. But the notice of appeal designated only the second order interpreting the decree. The Eighth Circuit thought that this created a problem; like the Tenth Circuit, it had held that designating a particular order in a notice of appeal limits the scope of appeal to that order:
[A] notice which manifests an appeal from a specific district court order or decision precludes an appellant from challenging an order or decision that he or she failed to identify in the notice.
(Quotation marks omitted.) The Eighth Circuit ultimately found an exception to this rule—the appellant’s intent to appeal both orders was “readily apparent from the notice of appeal.” The court also noted that the appellee would suffer no prejudice from plenary review. The Eighth Circuit accordingly reviewed both orders.
Again, this should not have been an issue. At the very least, the Eighth Circuit should have acknowledged the Rule 3(c) amendments. There have been far too many opinions of late that fail to do so. And when judges and lawyers rely on cases interpreting rules—rather than reading the rules themselves—abrogated practices like this can linger.
United States v. City of Fort Smith, 2022 WL 4231040 (8th Cir. Sep. 14, 2022), available at the Eighth Circuit and Westlaw
Evidence Admissibility & Qualified-Immunity Appeals
In Voskanyan v. Upchurch, the Ninth Circuit dismissed a qualified-immunity appeal in which the defendants disputed the factual basis for the immunity denial.
Judge Christen concurred in the judgment. She used her concurrence to argue that the courts of appeals can review evidence-admissibility issues in qualified-immunity appeals. Judge Christen relied primarily on the premise that properly reviewing summary-judgment decisions requires looking only at admissible evidence. She also noted that while the prejudice from most admissibility decisions is speculative until a final judgment, erroneous admissibility decisions immediately harm defendants in the qualified-immunity context. And while the courts of appeals normally lack jurisdiction to review the genuineness of fact disputes in qualified-immunity appeals, “not every apparent factual dispute is sufficient to defeat summary judgment.”
I don’t buy it. Of course courts normally review evidence admissibility when reviewing summary-judgment decisions. That’s because courts normally can review the genuineness of factual disputes. But immediate appeals from denials of qualified immunity are different. The Supreme Court held in Johnson v. Jones that courts generally lack jurisdiction to review the genuineness of factual disputes in immediate appeals from the denial of qualified immunity. So the general rule for summary judgment means little for qualified-immunity appeals.
Further, the potential for immediate prejudice from an erroneous admissibility decision in the qualified-immunity context doesn’t support an appeal. All sorts of district court decisions—including those on the genuineness of factual disputes—might immediately prejudice defendants in these cases. But defendants in civil-rights actions cannot immediately appeal from every adverse decision.
And it’s a big jump to say that the existence of exceptions to Johnson means that evidence admissibility is within the scope of a qualified-immunity appeal. Most courts have read Johnson to mean the opposite: the prohibition on reviewing the genuineness of fact disputes means that antecedent questions like admissibility are also off the table. Indeed, at least one court has said that it would not review the admissibility of even the “rankest type of inadmissible hearsay” in a qualified-immunity appeal.
There are exceptions. The Eighth Circuit has reviewed admissibility issues in qualified-immunity appeals at least twice. And the Fifth Circuit has some inconsistent caselaw on the matter. But the majority of courts have the better rule: evidence admissibility should not be part of a qualified-immunity appeal. Admissibility determinations are part of the district court’s determination that a genuine fact dispute exists—i.e., that the plaintiff has produced enough evidence for a reasonable jury to find particular facts. And there’s no need to add another issue to the ever-expanding scope of qualified-immunity appeals.
Voskanyan v. Upchurch, 2022 WL 4181664 (9th Cir. Sep. 13, 2022), available at the Ninth Circuit and Westlaw
Rule 54(b) Partial Judgments & Qualified-Immunity Appeals
In Mwangangi v. Nielsen, the Seventh Circuit determined that a Rule 54(b) partial judgment—which allowed a plaintiff to cross-appeal his loss on some claims alongside a qualified-immunity appeal—was proper.
The plaintiff brought claims against several defendants. The district court rejected the defendants’ request for qualified immunity on some of those claims but granted summary judgment to the defendants on others. Several issues remained for trial. The defendants appealed from the denial of qualified immunity. And the district court entered a partial judgment under Federal Rule of Civil Procedure 54(b) on the partial grant of summary judgment to the defendants.
The Seventh Circuit determined that the partial judgment was proper. The partial grant of summary judgment resolved some of the plaintiff’s claims as to all defendants, and those claims involved facts and injuries separate from the claims that remained pending. The district court also acted within its discretion in entering the judgment. The defendants were going to appeal the denial of qualified immunity on some claims, so an immediate appeal of the claims on which the plaintiff lost would not add significant delay. Immediate review might also be helpful; were the Seventh Circuit to reverse some or all of the plaintiff’s loss, “whatever was sent back to the district court could be consolidated with his other claims for a single trial—avoiding piecemeal litigation in both the district court and [the court of appeals].”
Mwangangi v. Nielsen, 2022 WL 4244594 (7th Cir. Sep. 15, 2022), available at the Seventh Circuit and Westlaw
Quick Notes
In In re E.I. Dupont de Nemours & Co. (no slip opinion available), the Sixth Circuit issued a rare explanation for granting a petition to appeal a class-certification decision via Federal Rule of Civil Procedure 23(f). The case presented unsettled and important issues of standing, class cohesion, and the specificity of relief. The class-certification decision, if not reversed, would also pressure the defendants to settle. And the district court might expand the scope of the class, suggesting a procedural posture well suited for interlocutory review.
In re E.I. Dupont de Nemours & Co., 2022 WL 4149090 (6th Cir. Sep. 9, 2022), available at Westlaw
And in Longuski v. Akers, the Sixth Circuit dismissed a qualified-immunity appeal in which the defendant challenged the factual basis for the immunity denial. Although the defendant “paid lip-service to the plaintiff’s account, most of his probable-cause arguments contested the plaintiff’s version of the facts.” (Cleaned up.)
Longuski v. Akers, 2022 WL 4129403 (6th Cir. Sep. 12, 2022), available at the Sixth Circuit and Westlaw