Appeals involving sua sponte CAFA remands, state court preliminary injunctions, judicial immunity in a criminal prosecution, contempt orders without a sanction, and more.
March 16, 2022
I was on spring break last week and took a break from the weekly roundup. But I’m back with decisions and developments from the past two weeks (February 27–March 12). And there were several decisions of note.
Two courts dismissed appeals based on close textual readings of jurisdictional statutes. A divided Eleventh Circuit held that it lacked jurisdiction to review sua sponte CAFA remands. The majority reasoned that 28 U.S.C. § 1453(c)(1) gives the courts of appeals discretion to review remand decisions that come after a motion to remand. Because sua sponte remands don’t come after a motion, they don’t fall within § 1453(c)(1). In reaching this conclusion, the Eleventh Circuit split with the Ninth. And the Sixth Circuit joined the First Circuit in holding that it could not review a state court’s preliminary-injunction order after a case was removed to federal court. Although 28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review many orders involving injunctive relief, those orders must come from a district court. A state court’s preliminary injunction does not become the district court’s after removal.
In other decisions, the First Circuit held that the denial of judicial immunity in a criminal case is not immediately appealable via the collateral-order doctrine, as judicial immunity is not a statutory or constitutional right to avoid trial. The Tenth Circuit held that a contempt order was not final until the district court imposed a sanction. The Ninth Circuit held that a nominally without-prejudice denial of relief from a bankruptcy stay was final. And two courts of appeals dismissed fact-based qualified-immunity appeals. Finally, a new cert petition asks whether a party must serve an effective notice of appeal on the other parties.
- New Split on Appealing Sua Sponte CAFA Remands
- State Court Injunctions, Removed Actions & § 1292(a)(1)
- Criminal Cases, Collateral Orders & Rights to Avoid Trial
- The Tenth Circuit Said No Contempt Appeal Without a Sanction
- The Ninth Circuit on Appealing a Without-Prejudice Denial of Relief From Bankruptcy’s Automatic Stay
- Last Week’s Fact-Based Qualified-Immunity Appeals
- New Cert Petition on Serving the Notice of Appeal
New Split on Appealing Sua Sponte CAFA Remands
The Class Action Fairness Act (often referred to as “CAFA”) permits the removal of certain class actions brought in state court. CAFA includes a special appellate provision—28 U.S.C. § 1453(c)(1)—which gives the courts of appeals discretion to review a district court order “granting or denying a motion to remand a class action to the State court from which it was removed.” Normally these remand decisions come after one of the parties has asked the district court to remand the case. But sometimes district courts remand actions without anyone asking.
In 2013, the Ninth Circuit held that these sua sponte remands fall within § 1453(c)(1), despite them not coming after a party’s motion. But last week, in Ruhlen v. Holiday Haven Homeowners, Inc., a divided Eleventh Circuit held that § 1453(c)(1) does not cover sua sponte remands. As the majority saw things, § 1453(c)(1) applies only to orders that come after a motion. And a remand at the district court’s own initiative—though colloquially referred to as on the district court’s own motion—does not actually come in response to a motion. Section 1453(c)(1)’s plain text thus meant that appellate courts do not even have discretion to review a sua sponte CAFA remand. Dissenting, Judge Rosenbaum contended that the majority’s decision was inconsistent with § 1453(c)(1)’s text and context, and it produced absurd results.
For more, see my post New Split on Appealing Sua Sponte CAFA Remands.
Ruhlen v. Holiday Haven Homeowners, Inc., 2022 WL 701622 (11th Cir. Mar. 9, 2022), available at the Eleventh Circuit and Westlaw.
State Court Injunctions, Removed Actions & § 1292(a)(1)
28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review many district court decisions involving injunctive relief. But § 1292(a)(1)’s text includes an important qualifier. It applies to “[i]nterlocutory orders of the district courts.” Normally this qualifier does little work. After all, most (if not nearly all) § 1292(a)(1) appeals involve injunctions issued by a district court.
In Schuler v. Adams, the Sixth Circuit had to address its jurisdiction to review a state court’s preliminary injunction. The case had been removed to federal court after the state court had issued the injunction. The Sixth Circuit held that it lacked appellate jurisdiction. The order—though granting injunctive relief—was not “of the district court[].” And removal did not transform the state court’s order into one of the district court.
For more, see my post State Court Injunctions, Removed Actions & § 1292(a)(1).
Schuler v. Adams, 2022 WL 669460 (6th Cir. Mar. 7, 2022), available at the Sixth Circuit and Westlaw.
Criminal Cases, Collateral Orders & Rights to Avoid Trial
One requirement for appeal via the collateral-order doctrine is that the district court’s order be effectively unreviewable in an appeal after a final judgment. A prime candidate for satisfying this unreviewability requirement are immunities from suit. If a defense protects a litigant from the burdens and uncertainties of trial, it must be vindicated immediately if it is to be vindicated at all. Courts have accordingly held that several kinds of immunities from suit are immediately appealable via the collateral-order doctrine.
Last month, this approach to immunity appeals ran into the collateral-order doctrine’s special strictures in the criminal context. In United States v. Joseph, the First Circuit said that in criminal cases the right to avoid trial must come from a statutory or constitutional right to avoid trial. The criminal context is thus more strict than the civil context, in which common law rights to avoid trial (such as qualified immunity) can warrant an appeal. The immunity at issue in Jospeh—judicial immunity—comes from the common law. The First Circuit accordingly held that the denial of judicial immunity is not immediately appealable in a criminal prosecution.
For more, see my post Criminal Cases, Collateral Orders & Rights to Avoid Trial.
United States v. Joseph, 2022 WL 592904 (1st Cir. Feb. 28, 2022), available at the First Circuit and Westlaw.
The Tenth Circuit Said No Contempt Appeal Without a Sanction
In FTC v. Zurixx, the Tenth Circuit dismissed an appeal from a contempt order.
Simplifying a bit, Zurixx involved a civil action to halt the sale of allegedly deceptive real-estate investment products. The district court enjoined the defendant from operating, froze its assets, and appointed a receiver to take control of those assets. The order also required that anyone with knowledge of the injunction preserve the defendant’s assets. Among those having control over the defendant’s assets was its landlord, who received notice of the injunction. But the landlord refused to allow the receiver to access the leased space. The landlord instead intended to evict the defendant and sell the defendant’s assets that were left in the leased space. The district court held the landlord in contempt and ordered him to either (1) give the receiver access or (2) compensate the receiver for the value of any assets the landlord took or otherwise disposed of. The landlord then appealed.
The First Circuit determined that it lacked jurisdiction over the entirety of the landlord’s appeal. For one thing, the landlord could not challenge the underlying injunction. Under 28 U.S.C. § 1292(a)(1), litigants can appeal from orders granting, denying, or modifying an injunction. But the contempt order did none of these. The landlord did not challenge the underlying injunction, so there was no refusal to modify an injunction. The issue was instead brought to the district court via the receiver’s motion for contempt.
The landlord also could not (yet) appeal the contempt order. To be sure, an order holding a non-party in contempt is normally a final, appealable decision. But in Zurixx, the landlord had not yet been sanctioned for the contempt. The district court instead gave the landlord a choice: comply with the injunction, or face a sanction. Until that sanction was imposed, the contempt order was not final.
FTC v. Zurixx, 2022 WL 598739 (10th Cir. Mar. 1, 2022), available at the Tenth Circuit and Westlaw.
The Ninth Circuit on Appealing a Without-Prejudice Denial of Relief From Bankruptcy’s Automatic Stay
In In re Mayer, the Ninth Circuit determined that a nominally without-prejudice denial of relief from a bankruptcy stay was final and appealable.
Simplifying a fair bit, the dispute in Mayer began with a lawsuit in Massachusetts state court. On the eve of trial, one of the parties filed for bankruptcy. That filing automatically stayed all claims against the debtor in the Massachusetts state court proceedings. One of the claimants in that state court proceeding asked the district court to lift the automatic stay. The district court denied that request, though it did so without prejudice. The claimant then appealed to the district court, which dismissed the appeal for lack of a final, appealable decision. The claimant then appealed that decision to the Ninth Circuit.
The Ninth Circuit held that the denial of relief from the automatic stay—though without prejudice—was final and appealable. In Rizten Group, Inc. v. Jackson Masonry, LLC, the Supreme Court held that a with-prejudice denial of relief from an automatic stay was final. In a footnote, the Court suggested that the outcome might be different if the denial was without prejudice. But in Mayer, the Ninth Circuit concluded that the district court had definitively denied the claimant’s request to lift the stay. The without-prejudice designation meant only that the district court would consider relief from the stay that was sought for a different purpose. It “unreservedly denied relief” to the claimant that sought to lift the stay to proceed with the Massachusetts litigation.
In re Mayer, 2022 WL 679085 (9th Cir. Mar. 8, 2022), available at the Ninth Circuit and Westlaw.
Last Week’s Fact-Based 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.
Isom v. Bulso
Isom v. Bulso involved malicious-prosecution claims against a police officer. The plaintiff alleged that the officer intentionally misidentified the plaintiff as a suspect, while the officer contended that misidentification was a mistake. When the officer eventually sought summary judgment on qualified-immunity grounds, the district court denied the motion. According to the district court, a reasonable jury could find that the officer knowingly misidentified the plaintiff as the suspect in a drug crime. And if the officer knowingly misidentified the plaintiff, the officer violated clearly established law. The officer nevertheless appealed from the denial of qualified immunity.
The Eleventh Circuit held that it lacked jurisdiction. The officer’s arguments on appeal concerned only the district court’s determination of what a reasonable jury could find. The officer couched his argument as a legal one, contending that the identification was mistaken, and a mistaken identification doesn’t violate clearly established law. But the premise for that argument—that the officer was mistaken—required second-guessing the district court’s determination of what a reasonable jury could find. The appeal was thus based entirely on a factual challenge. The Eleventh Circuit accordingly dismissed the appeal for a lack of appellate jurisdiction.
Isom v. Bulso, 2022 WL 682215 (11th Cir. Mar. 8, 2022), available at the Eleventh Circuit and Westlaw.
Windsor-Hart v. Genesee Township
Windsor-Hart v. Genesee Township involved claims against police officers for using excessive force in arresting the plaintiff. According to the district court, a reasonable jury could conclude that the plaintiff had been forcibly taken to the ground, all while she was neither resisting arrest nor posing a threat to anyone. The district court accordingly denied the officers’ request for qualified immunity. The officers nevertheless appealed, arguing that their use of force was reasonable.
The Sixth Circuit dismissed the appeal. The officers’ arguments relied entirely on their own version of events. For example, the officers argued that the plaintiff was unpredictable and violent, cursing and lunging at them. They contended that while arresting the plaintiff she “thrashed about and prepared to punch them.” And they claimed that the plaintiff tripped rather than being shoved and slammed into a vending machine.
But these facts (and more) were disputed. The district court determined that a reasonable jury could accept the plaintiff’s version of them. The defendants’ refusal to accept the district court’s version of events for purposes of the qualified-immunity appeal meant that the Sixth Circuit lacked jurisdiction.
Windsor-Hart v. Genesee Township, 2022 WL 705836 (6th Cir. Mar. 9, 2022), available at the Sixth Circuit and Westlaw.
New Cert Petition on Serving the Notice of Appeal
A new cert petition asks if an appeal can be dismissed because the appellant did not serve the notice of appeal on all parties.
When a party files a notice of appeal, Federal Rule of Appellate Procedure 3(d)(1) requires that the district court clerk serve notice of the filing on the other parties. Subsection (d)(3) goes on to state that the “clerk’s failure to serve notice does not affect the validity of the appeal.” The rules thus require that the district court clerk—not the appellant—serve notice of the notice of appeal on the other parties.
But in George v. Barcroft, the Ninth Circuit dismissed part of an appeal because the plaintiff failed to serve two defendants with a notice. The issue seems to have arisen because the plaintiff did not file a formal notice of appeal. She instead filed a request for pro bono counsel, which was the functional equivalent of a notice. She didn’t serve that request on the other parties. With no service of the notice, the Ninth Circuit concluded that it lacked jurisdiction.
The case is George v. House of Hope Recovery. The response is due April 4, 2022.
Petition for Writ of Certiorari, George v. House of Hope Recovery, No. 21-1211 (Feb. 28, 2022), available at the Supreme Court and Westlaw.