A baffling appellate-jurisdiction decision in the Fifth Circuit’s S.B. 8 case, pendent appellate jurisdiction over municipal liability and state-law arbitration, improper fact-based challenges to qualified-immunity denials, and more.
September 15, 2021
Last week, the Fifth Circuit refused to dismiss a private defendant’s appeal in a challenge to Texas’s new abortion restrictions. But the court’s explanation is inscrutable, and the grounds for appellate jurisdiction don’t make sense.
There were also two decisions involving the exercise of pendent appellate jurisdiction. The Eleventh Circuit’s embraced municipal piggybacking in qualified-immunity appeals. And the Third Circuit said that it could review state-law arbitration issues as part of an appeal under the Federal Arbitration Act.
Finally, three decisions rejected fact-based challenges to the denial of qualified immunity. One of those decisions also touched on the split over whether courts can review Heck v. Humphrey issues as part of a qualified-immunity appeal.
- The Fifth Circuit’s Bewildering Appellate-Jurisdiction Decision in the S.B. 8 Litigation
- The Eleventh Circuit Fully Embraced Municipal Piggybacking
- The Third Circuit on Pendent Appellate Jurisdiction Over State-Law Arbitration
- This Week’s Improper Qualified-Immunity Appeals
The Fifth Circuit’s Bewildering Appellate-Jurisdiction Decision in the S.B. 8 Litigation
In Whole Woman’s Health v. Jackson, the Fifth Circuit (1) denied a motion to stay enforcement of Texas’s new abortion restrictions, (2) denied a motion to dismiss a private defendant’s appeal in that litigation, and (3) stayed further district court proceedings against that private defendant. Much has already been said about Texas’s new abortion restrictions and the challenges to them. I’ll add only that the exercise of appellate jurisdiction in this case doesn’t make sense.
Whole Woman’s Health arises from a challenge to Texas’s new abortion restrictions, often referred to as S.B. 8. The plaintiffs sued several defendants. Some defendants were state officials, like agency heads, court clerks, and judges. One defendant was a private party who could enforce S.B. 8. The district court refused to dismiss the claims against all of the defendants, who then appealed. In response, the plaintiffs moved to stay enforcement of S.B. 8 pending the defendants’ appeal. The plaintiffs also moved to dismiss the private defendant’s appeal. And that private defendant sought to stay district court proceedings against him pending his appeal.
The Fifth Circuit first denied the motion to stay enforcement of S.B. 8. The plaintiffs, the Fifth Circuit said, were unlikely to succeed on the merits of their claims, as the state defendants were not proper targets of a lawsuit under Ex parte Young. The Fifth Circuit then went on to deny the motion to dismiss the private defendant’s appeal, and the court of appeals stayed further proceedings against him.
The Fifth Circuit didn’t really explain how it had jurisdiction over the private defendant’s appeal. And I don’t see it. The opinion notes that the private defendant did not invoke sovereign immunity, so he could not appeal from its denial. The closest the court came to an explanation were vague references to pendent appellate jurisdiction. That is, the private defendant’s appeal tagged along with the state defendants’ appeal.
But this is an improper use of pendent appellate jurisdiction. For one thing, the Fifth Circuit has rejected the exercise of pendent party appellate jurisdiction. The court said as much over 30 years ago in McKee v. City of Rockwall, noting that it was not “inclined to find here so strange an animal as ‘pendent party interlocutory appellate jurisdiction.’” The Fifth Circuit repeated that point after Swint v. Chambers County Commission—the Supreme Court case setting the modern contours of pendent appellate jurisdiction—and it did so again as recently as last spring’s Johnson v. Bowe. So although the Fifth Circuit might allow an appellant to add issues to an interlocutory appeal, it does not allow the addition of appellants.
Even if it did, this isn’t a good case for pendent party appellate jurisdiction. The Fifth Circuit reasoned that the state and private defendants’ appeals overlapped because they raised similar jurisdictional issues. So what? The only issue properly before the Fifth Circuit in the state defendants’ appeal is their claim of state sovereign immunity. And the private defendant did not invoke state sovereign immunity. Granted, the state defendants (and the private defendant) have tried to raise additional jurisdictional challenges in their appeal. And the Fifth Circuit seems to think that it can address other jurisdictional issues as part of a state-sovereign-immunity appeal. But that’s another a bad use of pendent appellate jurisdiction. The court could address state sovereign immunity without otherwise inquiring into other issues regarding the district court’s subject-matter jurisdiction.
Given this perceived overlap, the Fifth Circuit also stayed further proceedings against the private defendant. The perceived overlap meant that the district court lost jurisdiction over the claims against the private defendant when the state defendants appealed.
Whole Woman’s Health v. Jackson, 2021 WL 4128951 (5th Cir. Sep. 10, 2021), available at the Fifth Circuit and Westlaw.
The Eleventh Circuit Fully Embraced Municipal Piggybacking
In Tillis ex rel. Wuenschel v. Brown, a split Eleventh Circuit reversed a denial of qualified immunity and extended pendent appellate jurisdiction to several other issues.
The Tillis Litigation
Simplifying a bit, Tillis involved a fatal police shooting. After a car chase, a police officer and the decedent pulled to the side of the road. After the officer exited his vehicle, the decedent put his car in reverse. The officer fired 11 times into the vehicle’s back and side windows as the car passed by him. The car stopped, and the officer fired another 10 shots. One of those 21 shots killed the driver, whose estate and survivors then sued the officer for excessive force. The plaintiffs also sued the county for municipal liability. The district court granted the officer’s request for qualified immunity as to the first group of shots. But it denied immunity on the subsequent 10 shots. The district court also denied the county’s request to dismiss the municipal-liability claims. Everyone then appealed.
Pendent Appellate Jurisdiction for Everyone
Appellate jurisdiction over the denial of qualified immunity was secure. The Eleventh Circuit also extended pendent appellate jurisdiction to (1) the county’s appeal from the denial of its summary-judgment motion and (2) the plaintiff’s cross-appeal from the partial grant of summary judgment against the officer. Pendent appellate jurisdiction, the court said, was appropriate when the pendent issues are “inextricably intertwined” with the appealable issues. And two issues are sufficiently intertwined when “they implicate the same facts and the same law.” Pendent jurisdiction thus existed to review the plaintiffs’ cross-appeal, as the plaintiffs’ claims concerning the two groups of shots “implicate[d]” the same facts and law. As for the county’s appeal, the county was liable only if the officer violated the decedent’s constitutional rights. That made the municipal claims “derivative of the claims” against the officer.
A Sloppy Jurisdictional Decision
This is a sloppy jurisdictional decision. As for the plaintiff’s cross-appeal, the court is correct that the claims concerning the two groups of shots involve the same law—excessive force. But they involve different facts. It’s not as though the appealable and non-appealable issues involved different legal theories seeking a remedy for the same injury. The issues instead involve two distinct actions by the officer—firing while the car was moving towards him, and firing after the car had passed him and stopped.
The analysis for the county’s appeal is even worse. The court says that the municipal claim is “inextricably intertwined” with the qualified-immunity appeal because municipal liability is derivative of the officer’s liability. After all, with no constitutional violation by the individual defendant, there is nothing for the municipality to be liable for. Most courts of appeals will accordingly extend pendent appellate jurisdiction to a municipal appeal upon concluding that the individual defendant did not violate the constitution.
The Eleventh Circuit didn’t include the qualifier that pendent appellate jurisdiction is proper only upon concluding that the individual defendant did not violate the constitution. Perhaps it’s implied in the decision, as the court holds that no constitutional violation occurred. But the opinion’s language alone suggests that pendent appellate jurisdiction always exists over a municipal appeal when an individual defendant appeals from the denial of immunity.
Further, this extension of pendent appellate jurisdiction conflicts with earlier Eleventh Circuit decisions. On remand from the Supreme Court’s decision in Swint v. Chambers County Commission—the Court’s only major opinion on the use of pendent appellate jurisdiction—the Eleventh Circuit said that pendent-party jurisdiction does not exist. The Eleventh Circuit repeated that point for several years, explaining that individual and municipal liability were too distinct for pendent appellate jurisdiction to be proper.
But the Eleventh Circuit eventually walked back its seemingly categorical bar on pendent-party jurisdiction. The court said in King v. Cessna Aircraft Co. that, although pendent party jurisdiction did not exist in the qualified-immunity/municipal-appeal context, it might exist in other contexts. In 2018’s Glasscox v. City of Argo, the Eleventh Circuit addressed a city’s appeal alongside its employee’s qualified-immunity appeal, though the court did not mention pendent appellate jurisdiction. In 2019’s Taffe v. Wengert, the Eleventh Circuit said in an unpublished opinion that it could extend pendent appellate jurisdiction to a municipal appeal upon concluding that the individual defendant did not violate the constitution. And in Spencer v. Benison, decided only a few months ago, the Eleventh Circuit ultimately embraced municipal piggybacking in a published opinion.
Tillis seems to solidify the Eleventh Circuit’s embrace of this unpragmatic exercise of pendent appellate jurisdiction.
Tillis ex rel. Wuenschel v. Brown, 2021 WL 4059492 (11th Cir. Sep. 7, 2021), available at the Eleventh Circuit and Westlaw.
The Third Circuit on Pendent Appellate Jurisdiction Over State-Law Arbitration
In Harper v. Amazon.com Services, Inc., the Third Circuit extended pendent appellate jurisdiction to state-law arbitration issues as part of an appeal under the Federal Arbitration Act.
After the plaintiff in Harper sued Amazon over his employment status, Amazon moved to compel arbitration under the Federal Arbitration Act and state law. The district court refused to compel arbitration. Amazon then appealed under 9 U.S.C. § 16(a), which gives the courts of appeals jurisdiction to immediately review orders refusing to compel arbitration under the Act.
The Third Circuit said that it could also review the refusal to compel arbitration under state law. The state-law issues stemmed from the same arbitration agreement as the federal issues, and they provided “alternative grounds for the arbitration of all claims.” Review of the state-law issues via pendent appellate jurisdiction was thus “necessary to ensure meaningful review of the District Court’s order in its entirety.”
Harper v. Amazon.com Services, Inc., 2021 WL 4075350 (3d Cir. Sep. 8, 2021), available at the Third Circuit and Westlaw.
This Week’s Improper Qualified-Immunity Appeals
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.
Defendants regularly flout this 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. These improper appeals thus 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.
Last week saw two examples of these improper qualified-immunity appeals.
Ferguson v. McDonough
In Ferguson v. McDonough, the Seventh Circuit rejected an invocation of the blatant-contradiction exception to the normal limits on reviewing the genuineness of fact disputes.
Ferguson arose from the the defendant police officer’s Tasing of the plaintiff during an arrest. According to the district court, a reasonable jury could find that the plaintiff was not resisting when the officer Tased him. The officer nevertheless appealed, arguing that a video of the events “utterly discredit[ed]” the district court’s conclusion. (This “utterly discredited” argument is a semantic variation on the blatant-contradiction rule of Scott v. Harris: although courts of appeals generally cannot review the genuineness of fact disputes in a qualified-immunity appeal, they can do so when something in the record blatantly contradicts the district court’s assessment of the evidence.) But the video was open to interpretation. And because the officer based all of his arguments on his own version of events, the Seventh Circuit lacked jurisdiction over the appeal.
Ferguson v. McDonough, 2021 WL 4073121 (7th Cir. Sep. 8, 2021), available at the Seventh Circuit and Westlaw.
Canada Hockey, L.L.C. v. Marquardt
In Canada Hockey, L.L.C. v. Marquardt, the Fifth Circuit similarly rejected a defendant’s attempt to challenge the factual basis for an immunity denial.
Canada Hockey involved a copyright suit against Texas A&M University and other defendants, who allegedly copied the plaintiff’s biography of Texas A&M’s original 12th Man, E. King Gill. When one defendant sought qualified immunity at summary judgment, the district court determined that a genuine fact dispute existed over whether the plaintiff had a valid copyright in the biography.
The defendant nevertheless appealed to argue that the plaintiff did not have a valid copyright. This was “a classic argument that the factual dispute is not genuine,” which the Fifth Circuit lacked jurisdiction to review in a qualified-immunity appeal.
The Fifth Circuit also said that the defendant could not raise arguments made only in his motion to dismiss; the defendant needed to appeal from the denial of that motion, as the issues did not merge into the summary-judgment decision.
Canada Hockey, L.L.C. v. Marquardt, 2021 WL 4096585 (5th Cir. Sep. 8, 2021), available at the Fifth Circuit and Westlaw.
Poole v. City of Shreveport
In Poole v. City of Shreveport, the Fifth Circuit rejected a defendant’s argument that the district court should have accepted his version of the facts.
Poole involved the defendant police officer’s non-fatal shooting of a suspect. When the officer sought qualified immunity at summary judgment, the district court determined that three fact issues precluded deciding immunity: “whether the officer warned before shooting, whether the citizen had turned away from the officer, and whether the officer could see that the citizen was unarmed.”
The officer appealed. But “[g]iven the manifest unreasonableness of shooting an individual the officer can see is unarmed and not aggressive,” the officer challenged the district court’s assessment of the facts. The Fifth Circuit refused to second-guess the district court, as the genuineness of these factual disputes was outside the court of appeals’ jurisdiction. And the blatant-contradiction exception did not apply, as a video of the shooting was not conclusive.
The Fifth Circuit went on to review whether the plaintiff’s claims were barred by Heck v. Humphrey. The court noted that its caselaw was inconsistent on whether the Heck issue was within the scope of a qualified-immunity appeal. Sappington v. Bartree said that it was. Subsequent, unpublished decisions were to the contrary (as are several decisions from other circuits). The Fifth Circuit nevertheless had to follow its earliest decision (Sappington). So the court reviewed the Heck issue and affirmed the district court’s decision that Heck did not bar the plaintiff’s suit.
Poole v. City of Shreveport, 2021 WL 4128238 (5th Cir. Sep. 10, 2021), available at the Fifth Circuit and Westlaw.