August 6, 2020 - This Week at the Ninth

This Week at The Ninth: Appeals Dropping Like Flies

This week, the Ninth Circuit closely guarded its own jurisdiction while putting government litigants on the back foot. Read on to find out why county jailors’ qualified immunity appeal was dismissed, and how the Court handled a district court’s never-before-seen-in-the-Ninth Circuit order denying the federal government’s attempt to dismiss a False Claims Act suit.

HANSON v. SHUBERT
The Court dismissed an appeal of orders denying summary judgment on qualified immunity grounds and denying reconsideration of the summary judgment denial for lack of jurisdiction.

Panel: Nguyen, Bumatay, and Seeborg (N.D. Cal.), with Judge Seeborg writing the opinion and Judge Bumatay concurring.

Key Highlight: “The filing of an untimely motion” for reconsideration “will not toll the running of the appeal period” for the underlying order and “[u]nlike the substantive ruling on qualified immunity, the determination by the district court whether to reconsider that ruling does not raise important issues of the type allowing interlocutory appeal.”

Background: Plaintiff, an inmate at a county jail, sued the jail’s deputies for deliberate indifference to his medical needs that allegedly left him practically blind in his right eye. In 2018, the defendants moved for summary judgment on the grounds of qualified immunity but their motion was denied. In 2019, almost a year later, the defendants moved for reconsideration of the denial of summary judgment on the basis of the Supreme Court’s decision in City of Escondido v. Emmons, 139 S. Ct. 500. The district court denied the reconsideration motion and the defendants then appealed both the order denying reconsideration and the underlying summary judgment denial.

Result: The Ninth Circuit dismissed the appeal for lack of jurisdiction. The Court dismissed the appeal of the summary judgment denial as untimely. Under Federal Rule of Appellate Procedure (“FRAP”) 4(a), a notice of appeal must be filed within thirty days of the entry of the judgment or order appealed and thus the appeal of the summary judgment order—entered over a year earlier—was untimely. While the Court acknowledged that a timely filed Rule 59(e) motion to alter or amend a judgment may toll the appeals period under FRAP 4(a)(4)(A)(iv), defendants’ reconsideration motion here was not timely because it was filed nearly a year after the underlying summary judgment order. And an untimely Rule 59(e) motion, the Court explained, will not toll the running of the appeal period.

The Court also dismissed the appeal of the order denying reconsideration. Although the appeal of that order was filed within thirty days of its issuance, the order was an interlocutory order and not subject to any exception to the general rule that interlocutory orders are not immediately appealable. While an interlocutory order denying qualified immunity is appealable to the extent it turns on an issue of law that is because it belongs to a small class of interlocutory orders that are sufficiently important and independent of the underlying claims to be immediately reviewable. According to the Court, the same could not be said of orders denying reconsideration of the denial of qualified immunity. Such orders do “not raise important issues of the type allowing interlocutory appeal” because “[t]he legal question before [the Court] on appeal from an order denying reconsideration is whether the district court abused its discretion when denying reconsideration.”

In a footnote, the Court reserved the possibility that an order denying reconsideration of denial of qualified immunity might be immediately appealable under the collateral order doctrine when based on intervening law, but concluded that the Supreme Court’s decision in Escondido did not constitute such intervening law because it merely reiterated principles that it had explained many times before. Judge Bumatay concurred in all but the footnote because he would have adopted a “bright line rule against jurisdiction here.”

UNITED STATES v. UNITED STATES EX REL. THROWER
The Court dismissed an appeal from the district court’s denial of a government motion to dismiss a False Claims Act case because the decision was not an immediately appealable collateral order.

Panel: Wardlaw, W. Fletcher, and Linn (Fed. Cir.), with Judge Wardlaw writing the opinion.

Highlight: “As the Supreme Court has emphasized time and again, the ‘small class’ of immediately appealable collateral orders must remain ‘narrow and selective in its membership.’ Because the interests implicated by an erroneous denial of a Government motion to dismiss a False Claims Act case in which it has not intervened are insufficiently important to justify an immediate appeal, we conclude that they fall outside of the collateral order doctrine’s scope.”

Background: Gwen Thrower filed a False Claims Act suit alleging that her employer certified loans for a federal insurance program even though they failed to meet the government’s requirements. The government not only declined to exercise its statutory right to intervene and litigate the case itself, but also sought to dismiss the action under the FCA. The district court denied the motion to dismiss because it said the government had failed to provide a valid reason to dismiss the case and had failed to fully investigate Thrower’s allegations. The government appealed, arguing that the district court’s denial constituted a reviewable decision under the collateral order doctrine, which permits appeals of non-final orders that are too important to be denied immediate review.

Result: The Ninth Circuit dismissed the appeal for lack of jurisdiction and held that, as a matter of first impression, a district court’s denial of the government’s motion to dismiss a FCA suit does not fall within the collateral order doctrine. 28 U.S.C. § 1291 authorizes courts of appeals to review “all final decisions of district courts.” That jurisdiction primarily covers final judgments. But the Supreme Court has also interpreted it to extend to “a small set of prejudgment orders that are ‘collateral to’ the merits of an action and ‘too important’ to be denied immediate review.” The Ninth Circuit rejected application of that doctrine here for three reasons. First, the Court wrote that although the dismissal of an FCA action over the government’s objection and a denial of a government motion to intervene as of right are immediately appealable, those situations are distinguishable because they “determine important rights with sufficient finality” to qualify as collateral orders. Second, the Ninth Circuit reasoned that the government interests in dismissal were not sufficiently important, at least where the government has declined to intervene. Its interest in avoiding litigation costs was not particularly compelling because the government was not a party, and was thus adequately protected by normal limits on third-party discovery. After all, the Court reasoned, it wouldn’t make sense to hold that that the government’s interest in avoiding the mere possibility of onerous discovery merits immediate appeal “when third parties actually faced with burdensome subpoenas have no such right.” Finally, the Court rejected the government’s contention that its ruling would render denials of government dismissals unreviewable. The Court pointed out that this case marks the first time a district court in the Ninth Circuit has ever denied such a motion, and that the government can move to quash any burdensome subpoenas or intervene in the case. In the event of extraordinary circumstances, the government can always seek a certified appeal or petition the court of appeals for a writ of mandamus. Those “safety valves” are sufficient, the Court said, and so there’s no need to expand the collateral order doctrine to circumstances presented here.