The Week in Federal Appellate Jurisdiction: September 12–18, 2021

Last week saw only two decisions of note. The Sixth Circuit discussed whether an appellant can amend its notice of appeal (rather than file a second notice) to include a post-judgment decision on expert-witness fees. And Judge Tjoflat of the Eleventh Circuit wrote a concurrence on jurisdiction to review denials of qualified immunity at summary judgment. In cert-stage developments, briefing wrapped on a case involving (among other things) the appellate jurisdiction of the Foreign Intelligence Surveillance Court of Review.

• The Sixth Circuit on Amended Versus Second Notices of Appeal
• Judge Tjoflat on Appellate Jurisdiction in Qualified-Immunity Appeals
• Cert-Stage Briefing Is Complete on Appellate Jurisdiction Over FISC Denials of Access to Its Opinions.

The Sixth Circuit on Amended Versus Second Notices of Appeal

In Phillips v. Tangilag, the Sixth Circuit avoided deciding whether a would-be appellant needed to file a second notice of appeal—not amend the first one—to appeal a post-judgment decision on expert-witness fees.

Federal Rule of Appellate Procedure 4(a)(4) says that with certain post-judgment decisions, would-be appellants need only amend an existing notice of appeal to include within a post-notice, post-judgment decision. A post-judgment decision on expert-witness fees is not one of the motions listed in Rule 4(a)(4). The defendant in Tangilag accordingly argued that a second notice of appeal—and a second filing fee—were required to include a post-judgment decision on expert-witness fees within the scope of appeal.

The Sixth Circuit ultimately avoided this issue—the amended notice in Phillips provided all the information needed in a notice of appeal and thus served as an effective notice. But the court suggested that it would have allowed an amended notice for any kind of post-judgment decision, not just those listed in Rule 4(a)(4). After all, the rules don’t preclude an amended notice of appeal for other kinds of post-judgment decisions. And other courts have not required a second notice of appeal for other kinds of post-judgment decisions.

Phillips v. Tangilag, 2021 WL 4237164 (6th Cir. Sep. 17, 2021), available at the Sixth Circuit and Westlaw.

Judge Tjoflat on Appellate Jurisdiction in Qualified-Immunity Appeals

In Wade v. United States, the Eleventh Circuit reversed the denial of qualified immunity at summary judgment. Judge Tjoflat concurred to discuss appellate jurisdiction over those denials. And some of his language treated these appeals as though they are normal appeals from summary-judgment decisions. That is, the court of appeals reviews de novo, drawing all factual inferences in favor of the non-moving party and asking whether the movant would be liable under those facts. Judge Tjoflat also suggested that factual disputes “will never exist . . . where an officer appeals a denial of qualified immunity based on the clearly established prong and not on the sufficiency of the evidence.”

Qualified-immunity appeals are more nuanced than this. With rare and narrow exceptions, the court of appeals lacks jurisdiction to review the factual basis for the immunity denial. So the court of appeals does not itself draw all inferences in the plaintiff’s favor. It must instead take as given the district court’s drawing of inferences in the plaintiff’s favor. And the court of appeals normally lacks jurisdiction over a defendant’s challenge to the inferences that the district court drew.

Judge Tjoflat’s above-quoted observation—that factual disputes never exist when a defendant doesn’t challenge the evidence sufficiency—is a truism. But defendants don’t always squarely challenge the sufficiency of the evidence. They instead try to present the record in a different light than the district court saw it. And they seek qualified immunity on that version of the record. Courts have accordingly dismissed qualified-immunity appeals when defendants purported to challenge only whether the law was clearly established, as that argument involved a back-door challenge to the district court’s assessment of the record.

Wade v. United States, 2021 WL 4234168 (11th Cir. Sep. 17, 2021), available at the Eleventh Circuit and Westlaw.

Cert-Stage Briefing Is Complete on Appellate Jurisdiction Over FISC Denials of Access to Its Opinions

Cert-stage briefing is complete in American Civil Liberties Union v. United States. The case asks (among other things) if the Foreign Intelligence Surveillance Court of Review has appellate jurisdiction to to review the Foreign Intelligence Surveillance Court’s denial of access to its unredacted opinions. The Court of Review recently held that couldn’t do so. You can read about that decision in a previous weekly roundup. The case is scheduled for conference on October 8, 2021. You can find all of the cert-stage briefing at the Supreme Court’s docket.