Qualified immunity, immigration exhaustion, notices of appeal, and more.
January 8, 2020
Back from winter break with two holiday weeks of interesting appellate-jurisdiction opinions. Judge Fletcher offered an interesting take on Johnson v. Jones. Two circuits dealt with the blatant-contradiction exception to the normal jurisdictional limits on qualified-immunity appeals. Another opinion questioned the jurisdictional nature of immigration exhaustion. Plus two decisions on the content requirements for notices of appeal, the administrative-remand rule, and several cert-stage filings in cases I’ve been following.
- Judge Fletcher on interlocutory qualified-immunity appeals
- The Sixth and Tenth Circuits on the blatant-contradiction exception in qualified-immunity appeals
- Another opinion questioned the jurisdictional nature of immigration exhaustion
- The Tenth Circuit declined to apply the administrative-remand rule
- The Ninth Circuit held that no proper party appealed in a case
- The Fifth Circuit on premature notices of appeal and designating orders
- Supreme Court developments
Judge Fletcher on interlocutory qualified-immunity appeals
In Tuuamalemalo v. Greene, the Ninth Circuit affirmed an order denying qualified immunity to a police officer on an excessive-force claim.
Judge Fletcher concurred to address “the continuing confusion over the proper standard for determining appealability of interlocutory orders denying motions for summary judgment based on qualified immunity under § 1983,” focusing particularly on the Supreme Court’s decision in Johnson v. Jones. As Judge Fletcher read Johnson, appellate jurisdiction turns on the basis for a district court’s denial of qualified immunity. A district court might hold that under the defendant’s version of the facts, the defendant is not entitled to qualified immunity. Or the district court might hold that under the plaintiff’s version of the facts, the defendant is not entitled to qualified immunity, but that version of the facts is disputed.
Judge Fletcher read Johson to mean appellate jurisdiction exists only in the first scenario, not the second:
The most natural reading of [Johnson] is that a court of appeals has interlocutory appellate jurisdiction over an order denying summary judgment only when a district court denies a defendant’s motion for summary judgment based on the defendant’s version of the facts. A court of appeals does not have jurisdiction if a plaintiff’s version of the facts would defeat qualified immunity but that version of the facts is disputed.
This, Judge Fletcher thought, was an odd rule. After all, most denials of qualified immunity involve disputed questions of fact. But that is precisely the scenario in which Judge Fletcher’s reading of Johnson deprives the courts of appellate jurisdiction. Johnson has accordingly led to “persistent confusion in the courts of appeals”:
On the one hand, the courts of appeals understand the purpose of Mitchell. They understand the importance of interlocutory appellate jurisdiction in cases where, in the view of the district court, plaintiff’s version of the facts, construed in the light most favorable to plaintiff, would defeat qualified immunity. On the other hand, they are confronted with the language of Johnson that appears to preclude the exercise of appellate jurisdiction in exactly those cases.
Judge Fletcher saw this tension play out with courts—including the Supreme Court—doing exactly what Johnson said not to do: hearing interlocutory appeals while crediting the plaintiff’s version of disputed facts.
All that’s left for Johnson’s to do is prohibit courts from crediting the defendant’s version of the facts in an interlocutory qualified-immunity appeal. But Johnson wasn’t necessary for that to be the rule; the normal summary-judgment standard already says not to do that. Judge Fletcher ended his concurrence calling for Johnson to be overruled:
I hope that the Supreme Court will revisit the issue soon and will disavow Johnson entirely.
The concurrence is well worth reading. And while I haven’t thought through it completely, I think I have to disagree with Judge Fletcher. I read Johnson quite differently—to prohibit interlocutory review of the district court’s determination that a genuine fact issue exists. And that’s an important rule, as it limits the costs of interlocutory qualified-immunity appeals. I’ll probably have more to say on Judge Fletcher’s concurrence soon.
Tuuamalemalo v. Greene, 2019 WL 7161278 (9th Cir. Dec. 24, 2019), available at the Ninth Circuit and Westlaw.
The Sixth and Tenth Circuits on the blatant-contradiction exception in qualified-immunity appeals
Relatedly, two courts addressed a potential exception to Johnson’s limit on the scope of review in interlocutory qualified-immunity appeals: the blatant-contradiction exception. Again, Johnson holds that courts hearing a qualified-immunity appeal generally lack jurisdiction to review the genuineness of any factual disputes; they must instead take as given the facts assumed by the district court and determine whether those facts make out a clear constitutional violation. But the courts of appeals have developed a “blatant contradiction” exception to this general jurisdictional rule that allows them to review the genuineness of a fact dispute when something in the summary-judgment record “blatantly contradicts” the district court’s assumed facts.
In Bey v. Falk, a split Sixth Circuit held that it had jurisdiction to correct an “obvious factual error[]” the district court made in denying qualified immunity. Bey involved Fourth and Fourteenth Amendment claims against several police officers who allegedly stopped the plaintiff without reasonable suspicion and because of his race. The district court denied qualified immunity, and the officers appealed.
For the most part, the majority stayed within Johnson’s jurisdictional bounds. But not entirely. The district court had determined that a genuine fact issue existed as to whether one of the officers intentionally discriminated against the plaintiff. The district court determined as much due to the officer’s answer to a deposition question:
Question: “If race played a part in your decision to make an arrest of somebody, would you admit that under oath?”
Answer: “No.”
The Sixth Circuit noted its limited jurisdiction but said that “in some rare circumstances, [it is] able to fix obvious factual errors by the district court.” And this, the court thought, was one such circumstance. As the court read the deposition, the officer had objected that the question was not a fair one because it assumed that he would arrest someone based on their race. The officer, the court concluded, thus answered no “because he understood the question to ask him to admit that he had stopped or would stop someone based on race.” And that, according to the court, had no bearing on whether the officer would actually stop someone based on their race or whether the officer did so. The Sixth Circuit concluded: “The district court’s conclusion that this dubious line of questioning supports an inference of discriminatory intent is blatantly contrary to the record when [the officer]’s testimony is considered as a whole.”
In McCowan v. Morales, the Tenth Circuit declined to apply the blatant-contradiction exception. McCowan involved an arrestee’s claims against a police officer for excessive force and deliberate indifference to serious medical needs. The district court denied qualified immunity to the officer on these claims, and the officer appealed.
On appeal, the officer challenged one of the district court’s factual assumptions. The district court assumed that the plaintiff had told the booking officer at the detention center that he was in pain. On appeal, the officer argued that this assumption was blatantly contradicted by the record. Although the plaintiff testified that he had told the booking officer about his pain, the intake form made no mention of any complaints.
But this intake form, the Tenth Circuit concluded, did not blatantly contradict the plaintiff’s deposition. The form contained merely what the booking officer wrote, and it was susceptible to being “mistaken, falsified, or incomplete.”
As I’ve argued several times, the blatant-contradiction exception is profoundly unpragmatic and unneeded. Bey and McCowan illustrate why: Allowing defendants to invoke this exception often requires courts to do the precise work that the normal limits on jurisdiction are meant to avoid. And these sorts of errors are rare. So most the time spent addressing them is wasted. You can read my draft article—Blatant Contradictions in Interlocutory Qualified-Immunity Appeals—for more on this topic.
Also of note, Judge Clay’s dissent in Bey is well worth reading.
Bey v. Falk, 2019 WL 7341354 (6th Cir. Dec. 31, 2019), available at the Sixth Circuit and Westlaw.
McCowan v. Morales, 2019 WL 7206045 (Dec. 27, 2019), available at the Tenth Circuit and Westlaw.
Another opinion questioned the jurisdictional nature of immigration exhaustion
Most courts of appeals hold that immigration’s exhaustion requirement is jurisdictional. Last month, Judge Murphy of the Sixth Circuit wrote a concurrence questioning whether that rule was correct. The Tenth Circuit has now chimed in on the issue as well.
In Robles-Garcia v. Barr, the Tenth Circuit held that an immigration petitioner was jurisdictionally barred from making an argument that she had not made to immigration authorities. But the court reached that conclusion “with some reluctance.” The Tenth Circuit noted that (1) the Supreme Court has recently admonished courts to be careful in calling rules “jurisdictional,” (2) immigration’s exhaustion requirement does not use the word “jurisdiction,” and (3) the Tenth Circuit has created exceptions to the exhaustion requirement and left open the possibility of others. All of these suggest that exhaustion is not actually jurisdictional. But the court was bound by its precedent holding otherwise.
Robles-Garcia v. Barr, 2019 WL 7161212 (10th Cir. Dec. 24, 2019), available at the Tenth Circuit and Westlaw.
The Tenth Circuit declined to apply the administrative-remand rule
In New Mexico Health Connections v. U.S. Department of Health & Human Services, the Tenth Circuit held that it had jurisdiction to review a district court order remanding a dispute to the Department of Health and Human Services.
In New Mexico Health Connections, an insurance company sued the Department in federal court, claiming that certain Department rules were invalid under the Administrative Procedures Act. The district court agreed, vacating the rules and remanding the dispute to the agency. The Department then appealed.
The Tenth Circuit held that it had jurisdiction over the appeal despite what’s often called the “administrative-remand rule.” The general rule is that orders remanding a dispute to an agency for further proceedings are not yet final or appealable; more remains to be done in the agency, after which the parties can return to the district court and then go to the court of appeals. This created a jurisdictional issue, as the order in New Mexico Health Connections ostensibly remanded the dispute to the Department.
But the Tenth Circuit held that the general rule did not apply. The court noted that the Department was acting in a legislative—not adjudicative—capacity in promulgating the challenged rules. And the remand was not a “typical” one. In a footnote, the court also said that even if the district court’s order was an administrative remand, it would still be appealable under the “practical finality exception” to the general rule. The issue here was important, and urgent review was necessary due to the potential impact on the national health insurance market. And, importantly, failure to review the decision now might foreclose any appellate review—the Department could not challenge changes to its own rules that the district court had ordered.
For anyone interested, I’ve written a bit about the administrative-remand rule and its origins in the balancing approach to appellate jurisdiction: see pages 386–393 of Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction.
New Mexico Health Connections v. U.S. Department of Health & Human Services, 2019 WL 7343450 (10th Cir. Dec. 31, 2019), available at the Tenth Circuit and Westlaw.
The Ninth Circuit held that no proper party appealed in a case
In U.S. ex rel. Alexander Volkhoff, LLC v. Jansen Pharmaceutica N.V., the Ninth Circuit dismissed an appeal because no proper party was designated in the notice of appeal.
Alexander Volkhoff began as a false-claims qui tam action filed by a corporate entity—Alexander Volkhoff, LLC—against several pharmaceutical companies. In the original complaint, only Alexander Volkhoff, LLC was named as a plaintiff. But an amended complaint removed the company as a plaintiff and instead named only “Jane Doe.” (This was apparently done to save an employment-retaliation claim, which can be brought only by people and not companies.) The district court then dismissed the amended complaint due to the first-to-file bar, which bars third parties from intervening in or filing their own false-claim qui tam actions after an initial one has been filed.
A notice of appeal was then filed. But the notice of appeal named only Alexander Volkhoff, LLC as the appellant; Jane Doe was not named anywhere.
The Ninth Circuit accordingly dismissed the appeal for lack of jurisdiction, as the notice failed to name a proper party. As to Alexander Volkhoff, LLC, it was no longer a party when the notice was filed. And non-parties generally cannot appeal. There are exceptions to this rule, such as when a non-party participated in the litigation. But no exceptions applied here. And the only proper party—Jane Doe—was not named on the notice of appeal. This failure to name Jane Doe, the Ninth Circuit determined, was not a mistake, nor could the court infer an intent to appeal from the notice or anything else. Because neither Alexander Volkhoff, LLC nor Jane Doe had properly appealed, the Ninth Circuit dismissed the appeal.
U.S. ex rel. Alexander Volkhoff, LLC v. Jansen Pharmaceutica N.V., 2020 WL 21469 (9th Cir. Jan. 2, 2020), available at the Ninth Circuit and Westlaw.
The Fifth Circuit on premature notices of appeal and designating orders
In Universal Truckload, Inc. v. Dalton Logistics, Inc., the Fifth Circuit addressed two issues with the appellant’s notice of appeal—its timing and its contents.
The case involved several claims against multiple defendants, though only one defendant is terribly relevant for appellate-jurisdiction purposes. Simplifying a bit, after the district court denied the plaintiff’s motion for summary judgment against one of the defendants, the claims against that defendant proceeded to trial. A jury found for the defendant, and the district court denied the plaintiff’s Rule 50 motion for judgment as a matter of law. The plaintiff then filed a notice of appeal, designating the denial of summary judgment as the order being appealed.
This notice of appeal had a couple of problems.
First, it was premature. Although the claims against that one defendant were resolved, other claims against other defendants remained pending at that time, and a final judgment was not entered until two months later. But the subsequent resolution of all remaining claims saved the premature notice. As almost all courts interpret Appellate Rule 4(a)(2) and the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage Insurance, the subsequent entry of a final judgment saves a premature notice of appeal filed after an order that could have been certified for an immediate appeal under Civil Rule 54(b). The order appealed from in Universal Truckload could have been so certified—it resolved some (but not all) of the claims in a multi-claim, multi-party suit. So the subsequent final decision saved the premature notice.
(For more on the situations in which subsequent events can save a premature notice of appeal, see my article Cumulative Finality.)
Second, the notice of appeal designated only the summary-judgment decision as the decision being appealed, not the denial of the motion for judgment as a matter of law. Denials of summary judgment are normally not appealable after a jury trial, and the Fifth Circuit has held that preserving any issues raised in a summary-judgment motion requires re-presenting those issues in a motion for judgment as a matter of law. Further, the notice of appeal must designate the denial of the motion for judgment as a matter of law; in the Fifth Circuit’s words, the party must “appeal[] from” the denial of that motion. The appellant in Universal Truckload did not do so. So it failed to appeal the denial of its motion for judgment as a matter of law.
This latter holding is odd and unnecessary, and it stems from appellate courts’ misreading of the order-designation requirement in Appellate Rule 3(c). As I’ve discussed several times before, the order-designation requirement is not supposed to specify the scope of the appeal. But several courts have read it to do so. Proposed amendments to Rule 3(c) should abrogate this misreading.
Universal Truckload, Inc. v. Dalton Logistics, Inc., 2020 WL 39012 (5th Cir. Jan. 3, 2019), available at [the Fifth Circuit] and Westlaw.
Supreme Court developments
Finally, let’s catch up on some cert petitions.
Salinas v. U.S. Railroad Retirement Board
The government agreed with the petition in Salinas v. U.S. Railroad Retirement Board that cert should be granted. The case asks if the Railroad Retirement Board’s denial of a motion to reopen a prior benefits determination is a “final decision” that the courts of appeals can review. The government’s response disagreed with the petitioner on the merits; it argued that the Fifth Circuit correctly held that it lacked jurisdiction to review denials of requests to reopen. But the government agreed that the question warranted cert and that Salinas is a proper vehicle for addressing it.
The petition has been distributed for the conference on January 10, 2019.
Brief for the Respondent, Salinas v. U.S. Railroad Retirement Board, No. 19-199 (Dec. 9, 2019), available at the Supreme Court.
Taffe v. Wengert
The response and reply briefs were filed in Taffe v. Wengert. The case asks (among other things) (1) when courts of appeals can reject a district court’s factual assumptions in denying qualified immunity and (2) if appellate courts can extend pendent appellate jurisdiction over other, normally non-appealable claims as part of a qualified-immunity appeal.
The case is not yet scheduled for conference.
Joint Brief in Opposition, Taffe v. Wengert, No. 19-486 (Dec. 23, 2019), available at the Supreme Court and Westlaw.
Reply Brief, Taffe v. Wengert, No. 19-486 (Dec. 23, 2019), available at the Supreme Court.
Graf v. Koh
The reply brief was filed in Graf v. Koh. The case asks if the scope of an interlocutory qualified-immunity appeal includes review of the inferences a district court draws from otherwise-undisputed evidence.
The petition has been distributed for the conference on January 17, 2019.
Reply Brief, Graf v. Koh, No. 19-624 (Dec. 23, 2019), available at the Supreme Court and Westlaw.
CACI Premier Technology, Inc. v. Al Shimari
Finally, multiple briefs were filed in CACI Premier Technology, Inc. v. Al Shimari. The case asks if denials of derivative sovereign immunity are immediately appealable. DRI and Kellogg Brown & Root Services, Inc. each filed amicus briefs in support of the petition, and the plaintiffs filed their opposition brief.
The case is not yet scheduled for conference.
Brief in Opposition, CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (Dec. 19, 2019), available at the Supreme Court and Westlaw.
Brief of DRI-the Voice of the Defense Bar as Amicus Curiae in Support of Petitioner, CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (Dec. 17, 2019), available at the Supreme Court and Westlaw.
Brief of Amicus Curiae Kellogg Brown & Root Services, Inc. in Support Of Petitioner, CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (Dec. 17, 2019), available at the Supreme Court and Westlaw.