The Week in Federal Appellate Jurisdiction: September 19–25, 2021

It was another slow week, with only two decisions of note. The First Circuit used mandamus to review a discovery order that implicated legislative privilege. And Judge Willett dissented from an opinion reversing the denial of qualified immunity. According to Judge Willett, the majority had evaded the normal jurisdictional limits on reviewing the factual basis for an immunity denial.

• The First Circuit on Mandamus and Legislative Privilege
• Judge Willett on Collaterally Attacking the Factual Basis for a Qualified-Immunity Denial

The First Circuit on Mandamus and Legislative Privilege

In American Trucking Associations, Inc. v. Alviti, the First Circuit issued a writ of advisory mandamus that quashed subpoenas directed to former government officials.

American Trucking involved a Commerce Clause challenge to Rhode Island’s bridge tolls. The plaintiffs sought discovery from a number of entities, including Rhode Island’s former governor, former state legislators, and an engineering consultancy that worked on the toll provisions. The defendants sought to quash these subpoenas. They argued that discovery was barred by legislative privilege and, in the former governor’s case, the deliberative-process privilege. The district court refused to quash the subpoenas. The defendants then filed a notice of appeal and, alternatively, petitioned the First Circuit for a writ of mandamus.

The First Circuit first held that it lacked jurisdiction over the appeal. State officials, like (almost) everyone else, cannot immediately appeal discovery orders without first being held in contempt. The state officials in American Trucking had not yet disobeyed the orders, much less been held in contempt. So they could not take an immediate appeal.

Mandamus was a different story, at least in part. Advisory mandamus is appropriate, the First Circuit explained, when a case presents an unsettled and important question that is both likely to recur and evade appellate review. And American Trucking was an “extraordinary case” that warranted advisory mandamus on the legislative-privilege issue. The First Circuit had not yet addressed the scope of legislative privilege, particularly in the context of a Commerce Clause challenge, and the district courts had divided on the issue. That privilege implicated “important questions about the appropriate balance of power between the states and the federal government.” And the issue was both likely to recur and—absent advisory mandamus—evade appellate review; the federal courts have recently been called on to decide legislative-privilege issues, and contempt appeals are not as readily available for state actors as they are for private parties. The First Circuit accordingly used advisory mandamus to review the discovery orders directed to the state officials and ordered that those orders be quashed.

But mandamus was not appropriate as to the discovery order directed at the engineering consultant. The federalism concerns were missing when it came to a private entity. And that private entity could use the contempt option. The discovery order for the consultant was thus a run-of-the-mill discovery order that didn’t warrant extraordinary relief.

American Trucking Associations, Inc. v. Alviti, 2021 WL 4272556 (1st Cir. Sep. 21, 2021), available at the First Circuit and Westlaw.

Judge Willett on Collaterally Attacking the Factual Basis for a Qualified-Immunity Denial

In Kokesh v. Curlee, the Fifth Circuit reversed the denial of qualified immunity for a state trooper. Judge Willett dissented, contending (among other things) that the Fifth Circuit had exceeded the jurisdictional limits on qualified-immunity appeals by reviewing the genuineness of fact disputes “under the guise of materiality.”

Kokesh involved unreasonable-seizure and retaliatory-arrest claims. The plaintiff had been part of a group that was pressure-washing a stencil of the word “freedom” into an overpass wall. When the defendant police officer stopped to investigate the group, the plaintiff refused to identify himself. The officer then arrested the plaintiff for refusing to provide identification. The plaintiff later brought the above-mentioned unreasonable-seizure and retaliatory-arrest claims, and the officer sought qualified immunity. The district court denied immunity. The officer then appealed.

A majority of the Fifth Circuit reversed the immunity denial. On the unreasonable-seizure claim, the court concluded that the officer had sufficient reason to both question and arrest the plaintiff. On the retaliatory-arrest claim, the court determined that the plaintiff’s First Amendment-protected activity—recording the police officer—did not cause the plaintiff’s arrest.

Judge Willett dissented. He noted the jurisdictional limits on a qualified-immunity appeal at the summary-judgment stage:

[W]e lack jurisdiction to review genuineness—whether the district court correctly found a particular fact dispute genuine. . . . Our analysis centers on one thing: whether the fact disputes identified by the district court are material.

The majority, Judge Willett contended, disregarded these limits.

According to the district court, a reasonable jury could find that the officer lacked probable cause—i.e., he was unable to “point to specific and articulable facts that, taken together with their rational inferences, would warrant a reasonably cautious person to believe that the plaintiff was involved in criminal activity.” (Cleaned up.) Because defendants normally cannot challenge the factual basis for an immunity denial, the officer in Kokesh (and the court of appeals) would normally have to adhere to that determination. The majority nevertheless rejected the district court’s conclusion based on the majority’s own assessment of the officer’s bodycam footage.

Judge Willett contended that the majority’s doing so was improper. There was enough evidence for a reasonable jury to find that any reasonable suspicion of criminal activity had ended by the time the officer arrested the plaintiff. What the officer knew at any given point in the encounter was a factual question, and it was the jury’s job to infer that knowledge from the evidence. The majority arrived at a contrary conclusion “only after collaterally attacking genuineness and drawing inferences against” the plaintiff.

On the retaliatory-arrest claim, Judge Willett again explained that the district court had concluded that “fact issues swirled around whether [the officer] had probable cause to arrest” the plaintiff. The majority avoided this seeming fact issue “by doing precisely what it lack[ed] jurisdiction to do: rejecting that this dispute is genuine—in fact, branding it ‘frivolous.’” The majority “spen[t] pages building up an inference that [the officer] could not possibly have had a retaliatory motive.” But that was a question for the jury. And given the record, a jury could find that the officer acted with a retaliatory motive.

One final note. The majority ended its opinion by saying, “The Fourth Amendment and 42 U.S.C. § 1983 should not be employed as a daily quiz tendered by videotaping hopefuls seeking to metamorphosize law enforcement officers from investigators and protectors, into mere spectators, and then further converting them into federal defendants.” I appreciated Judge Willet’s response to that line:

With greatest respect, I don’t know what any of that means.

Kokesh v. Curlee, 2021 WL 4269568 (5th Cir. Sep. 21, 2021), available at the Fifth Circuit and Westlaw.