The Weeks in Federal Appellate Jurisdiction: Winter Break 2022

It’s the fourth annual winter-break edition of the weekly roundup. As I have in previous years, I took a few weeks off from Final Decisions. But I’m back with a roundup covering the last three weeks of 2022. Those weeks saw a pair of collateral-order decisions, the effect of Nasrallah v. Barr on other kinds of immigration appeals, an en-banc decision on the timeliness of government appeals, and an appeal from the refusal to quash a grand-jury subpoena. Plus two qualified-immunity appeals in which the defendants challenged the factual basis for the immunity denial.

• No Collateral-Order Appeal From a Protective Order
• The Eleventh Circuit on Appealing Georgia’s Municipal Immunity
• The Eleventh Circuit on the Scope of Immigration Appeals
• En Banc The Federal Circuit on the Solicitor General’s Authorization of Government Appeals
• The Fifth Circuit Dismissed an Appeal Challenging Grand Jury Subpoenas
• The Weeks’ Qualified-Immunity Appeals

No Collateral-Order Appeal From a Protective Order

In Modern Font Applications LLC v. Alaska Airlines, Inc., a split Federal Circuit dismissed an appeal from an order barring a party’s in-house counsel from viewing “Attorneys’ Eyes Only” discovery.

The case involved a patent dispute, and the defendant designated certain source code “Attorneys Eyes Only” under the applicable protective order. This designation precluded the plaintiff’s in-house counsel from viewing the source code. The district court rejected the plaintiff’s efforts to lift this restriction. The plaintiff then appealed.

A majority of the Federal Circuit held that the decision was not immediately appealable via the collateral-order doctrine. That doctrine deems final district court decisions that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable after a final judgment. The district court’s discovery order failed the third requirement. Even if the plaintiff was unlikely to succeed on appeal (an erroneous exclusion would probably not warrant a reversal), there would still be effective review. And any prejudice from delayed review was speculative—it was not clear how in-house counsel’s exclusion from the discovery would harm the plaintiff.

Judge Newman dissented. As she saw things, the Federal Circuit had discretion to review the discovery ruling.

Modern Font Applications LLC v. Alaska Airlines, Inc., 2022 WL 17982798 (Fed. Cir. Dec. 29, 2022), available at the Federal Circuit and Westlaw

The Eleventh Circuit on Appealing Georgia’s Municipal Immunity

In Johnson v. 3M Company, the Eleventh Circuit held that a denial of municipal immunity under Georgia law is immediately appealable via the collateral-order doctrine.

The court noted that the immunity provided a protection from litigation. So like state immunity, the denial of municipal immunity was immediately appealable. And the Eleventh Circuit was not bothered by potential overlap with the merits. As the court saw things, “a question of immunity is separate from the merits of the underlying action for purposes of the collateral order doctrine, ‘even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.’” (Quoting Mitchell v. Forsyth.) So any overlap did not affect appellate jurisdiction.

Johnson is another example of (1) courts looking only to immunity from suit and not the other collateral-order requirements when deciding collateral-order cases, and (2) insisting that immunity is sufficiently separate from the merits when it actually is not.

Johnson v. 3M Company, 2022 WL 17828942 (11th Cir. Dec. 21, 2022), available at the Eleventh Circuit and Westlaw

The Eleventh Circuit on the Scope of Immigration Appeals

In Edwards v. U.S. Attorney General, the Eleventh Circuit held that Nasrallah v. Barr did not abrogate its caselaw barring review of immigrants’ factual challenges to withholding decisions.

Before Nasrallah, the Eleventh Circuit had held that it could not review these challenges. In Nasrallah, the Supreme Court held that courts of appeals could address factual challenges in petitions from the denial of relief under the Convention Against Torture. And the Court acknowledged that its decision “might lead to judicial review of factual challenges to statutory withholding orders.”

But, the Eleventh Circuit concluded, Nasrallah was not clearly on point nor clearly contrary to circuit precedent. The court of appeals thus adhered to that precedent barring appellate review of factual challenges.

Edwards v. U.S. Attorney General, 2022 WL 17875395 (11th Cir. Dec. 23, 2022), available at the Eleventh Circuit and Westlaw

En Banc The Federal Circuit on the Solicitor General’s Authorization of Government Appeals

In Rudisill v. McDonough, the en banc Federal Circuit held that the Solicitor General’s late authorization of a government appeal does not deprive the court of jurisdiction.

The Solicitor General determines whether and to what extent the government will appeal. But sometimes the Attorney General (which represented the government in Rudisill) will file a notice of appeal before the Solicitor General approves of the appeal. This is done to protect the government’s right to appeal. The government normally has 60 days to appeal. But sometimes the Solicitor General needs more than those 60 days to decide whether to appeal. In those cases, the government might file a protective notice of appeal pending the Solicitor General’s decision.

That was the case in Rudisill. The government filed a timely notice of appeal. The Solicitor General’s approval came several months later.

In July 2021, a panel of the Federal Circuit held that the late approval did not affect the timeliness of the appeal. The Federal Circuit took the case en banc and ultimately reversed the panel’s merits decision, which concerned the availability of education benefits for veterans. But the en banc court adhered to the jurisdictional holding.

Rudisill v. McDonough, Error (Fed. Cir. Dec. 15, 2022), available at the Federal Circuit and Westlaw

The Fifth Circuit Dismissed an Appeal Challenging Grand Jury Subpoenas

In In re Grand Jury Subpoena, the Fifth Circuit dismissed an appeal from an order refusing to quash two grand jury subpoenas. These orders are normally not appealable. But there are two exceptions. The court explained that it could review such an order if either (1) the target of the subpoena refused to comply and was held in contempt; or (2) a privilege claimant appealed from an order targeting a disinterested third party (so-called “Perlman appeals”). Neither exception applied.

In re Grand Jury Subpoena, 2022 WL 17982318 (5th Cir. Dec. 14, 2022), available at the Fifth Circuit and Westlaw

The Weeks’ Qualified-Immunity Appeals

Two courts addressed their jurisdiction in qualified-immunity appeals.

In Mulbah v. Jansen, the Eighth Circuit dismissed an appeal in which the defendant challenged the inferences the district court drew from the summary-judgment record.

The defendant police officer argued that he had probable cause to stop the plaintiff’s van because the plaintiff was speeding. But the district court determined that a reasonable jury could conclude that the plaintiff was not speeding. The officer nevertheless appealed from the denial of qualified immunity. And in that appeal, he continued to argue that the plaintiff had been speeding.

The Eighth Circuit explained that it lacked jurisdiction in a qualified-immunity appeal to address what a jury could find. Because the officer’s appeal depended on this fact issue, the court of appeals could not address it.

Mulbah v. Jansen, 2022 WL 17841512 (8th Cir. Dec. 22, 2022), available at the Eighth Circuit and Westlaw

Similarly, in Smith v. Agdeppa, a split Ninth Circuit affirmed the denial of qualified immunity. In responding to the dissent, the majority explained that the dissent’s view of events overlooked the limited scope of qualified-immunity appeals. The dissent “ignore[d] the district court’s factual findings, improperly weigh[ed] conflicting evidence, assess[ed] the sufficiency of the evidence, and ma[de] credibility determinations.” Those matters were beyond an appellate court’s jurisdiction in these sorts of appeals.

Smith v. Agdeppa, 2022 WL 17999612 (9th Cir. Dec. 30, 2022), available at the Ninth Circuit and Westlaw