Sexual Minorities Uganda v. Lively

Decision Date10 August 2018
Docket NumberNo. 17-1593,17-1593
Citation899 F.3d 24
Parties SEXUAL MINORITIES UGANDA, Plaintiff, Appellee, v. Scott LIVELY, individually and as President of Abiding Truth Ministries, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Mathew D. Staver, Orlando, FL, Horatio G. Mihet, Roger K. Gannam, Jacksonville, FL, Daniel J. Schmid, Mary E. McAlister, Orlando, FL, and Liberty Counsel on brief for appellant.

Pamela C. Spees, Lake Charles, LA, Jeena D. Shah, Baher Azmy, Judith Brown Chomsky, and Center for Constitutional Rights on brief for appellee.

Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

SELYA, Circuit Judge.

This appeal reminds us that federal courts of appeals have no roving writ to review either a district court's word choices or its run-of-the-mill interlocutory orders. Given these limitations, we are left with two questions, the first of which can be resolved through principles of judicial estoppel and the second of which can be resolved through a recognition of the district court's broad discretion with respect to supplemental jurisdiction. When all is said and done, we dismiss some portions of this appeal for want of appellate jurisdiction and otherwise affirm the district court's dismissal of the underlying action.


We start by rehearsing the travel of the case. Those who hunger for greater factual detail should consult the district court's exegetic rescripts. See Sexual Minorities Uganda v. Lively (Lively II ), 254 F.Supp.3d 262 (D. Mass. 2017) ; Sexual Minorities Uganda v. Lively (Lively I ), 960 F.Supp.2d 304 (D. Mass. 2013).

Plaintiff-appellee Sexual Minorities Uganda (SMUG) is an unincorporated association whose members have banded together to advocate for fair and equal treatment of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people living in that nation. In 2012, SMUG repaired to the federal district court in Massachusetts and sued defendant-appellant Scott Lively, asserting a claim under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and common-law claims for negligence and civil conspiracy. The complaint premised jurisdiction both on the ATS and on diversity of citizenship. As an anchor to windward, SMUG also invoked the district court's supplemental jurisdiction over the state-law claims.

The district court denied Lively's first motion to dismiss, see Lively I, 960 F.Supp.2d at 335, and the parties embarked on extensive pretrial discovery. In due season, Lively moved for summary judgment on all claims. See Fed. R. Civ. P. 56(a). He argued, inter alia, that the district court lacked subject-matter jurisdiction over the ATS claim due to the absence of evidence of unlawful domestic conduct, see Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124-25, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) ; that the court lacked diversity jurisdiction; and that the court should decline to exercise supplemental jurisdiction over the pendent state-law claims. SMUG opposed the motion, but the district court granted it, dismissing the ATS claim for want of subject-matter jurisdiction and declining to exercise supplemental jurisdiction over the state-law claims (which it dismissed without prejudice). See Lively II, 254 F.Supp.3d at 270-71. Although Lively was the prevailing party, he nonetheless appealed.


Lively chiefly faults the district court for including a series of unflattering statements in its dispositive opinion.1 Second, he says that the district court should have exercised diversity jurisdiction over SMUG's state-law claims. Diversity jurisdiction aside, he challenges both the district court's refusal to exercise supplemental jurisdiction over SMUG's state-law claims and its dismissal of those claims without prejudice (rather than with prejudice). Finally, he contends that the district court should have granted his first motion to dismiss in 2013. We take up these plaints one by one.

A. Purging the District Court's Opinion.

In his most loudly bruited claim of error, Lively beseeches us to purge certain unflattering statements from the district court's dispositive opinion. See, e.g., supra n.1. None of these statements, though, have any bearing on the analytical foundations of the dispositive order or impact the result. The statements are, therefore, dicta and, as such, they lack any binding or preclusive effect. See Kastigar v. United States, 406 U.S. 441, 454-55, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ; United States v. Barnes, 251 F.3d 251, 258 (1st Cir. 2001). Because they are not "in any sense necessary to the district court's judgment," we lack jurisdiction to entertain Lively's request that we excise them. United States v. Ottati & Goss, Inc., 900 F.2d 429, 443 (1st Cir. 1990) (Breyer, J.); see California v. Rooney, 483 U.S. 307, 311, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987) (per curiam). We explain briefly.

Lively's jurisdictional statement in this court predicated appellate jurisdiction on 28 U.S.C. § 1291. In enacting section 1291, Congress authorized the federal courts of appeals to review final orders and judgments of lower federal courts. See Cunningham v. Hamilton Cty., 527 U.S. 198, 203, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). We thus review "judgments, not statements in opinions." Black v. Cutter Labs., 351 U.S. 292, 297, 76 S.Ct. 824, 100 L.Ed. 1188 (1956) ; see Williams v. United States (In re Williams ), 156 F.3d 86, 90 (1st Cir. 1998). Generally speaking, only a party aggrieved by a final order or judgment may avail himself of the statutory right to appeal embodied in section 1291.2

See Cunningham, 527 U.S. at 203, 119 S.Ct. 1915 ; Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003). As a practical matter, this means that we typically review appeals by parties who lost in the lower court and confine our inquiry to findings that were necessary to sustain the final judgment. See Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) ; Vaquería Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 27-28 (1st Cir. 2014).

It follows that a party—like Lively—who has obtained a favorable final judgment may not "seek review of uncongenial findings not essential to the judgment and not binding upon [him] in future litigation." Mathias v. WorldCom Techs., Inc., 535 U.S. 682, 684, 122 S.Ct. 1780, 152 L.Ed.2d 911 (2002) (per curiam); see Elkin v. Metro. Prop. & Cas. Ins. Co. (In re Shkolnikov ), 470 F.3d 22, 24 (1st Cir. 2006). A necessary corollary of this proposition is that "a winner cannot appeal a judgment merely because there are passages in the court's opinion that displease him." Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir. 1992) ; see Navieros Inter-Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 316 (1st Cir. 1997). Such a praxis stems not only from the language and clear intendment of section 1291 itself, but also from prudential considerations. An appellate court's "resources are not well spent superintending each word a lower court utters en route to a final judgment in the [appellant's] favor." Camreta v. Greene, 563 U.S. 692, 704, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011). We conclude, therefore, that we lack jurisdiction to entertain Lively's request that we purge certain unflattering comments from the district court's opinion.

To be sure, the Supreme Court has on rare occasions determined that a party who won below was nonetheless injured by a final judgment and that policies "of sufficient importance" justified entertaining an appeal. Id. (quoting Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326, 336 n.7, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ). Lively labors to fit his appeal into one such exception. In Electrical Fittings, the judgment contained a legal finding that was unfavorable to the prevailing party. See 307 U.S. at 242, 59 S.Ct. 860. The Court entertained the appeal, "not for the purpose of passing on the merits, but to direct the reformation of the decree." Id.

Trying to fit this case into the contours of Electrical Fittings is like trying to fit a square peg into a round hole. The judgment from which Lively appeals simply dismisses SMUG's action; it does not include any findings adverse to Lively. The Electrical Fittings exception has no application where, as here, the language complained of does "not appear on the face of the judgment" but, rather, appears in the accompanying opinion. In re DES Litig., 7 F.3d 20, 25 (2d Cir. 1993) ; accord United States v. Fletcher ex rel. Fletcher, 805 F.3d 596, 605 (5th Cir. 2015). In short, there is nothing for us to excise.

Searching for traction, Lively complains that the challenged statements damaged his reputation. Whether or not this is true, the overriding principle is that "critical comments made in the course of a trial court's wonted functions—say, factfinding or opinion writing—... provide no independent basis for an appeal." In re Williams, 156 F.3d at 92. Lively's embarrassment in the face of the district court's unflattering comments, without more, cannot suffice to manufacture appellate jurisdiction where none exists. See id.; see also In re Shkolnikov, 470 F.3d at 25.

Leaving no stone unturned, Lively attacks the unflattering comments from yet another direction. He contends that the district court, acting ultra vires, entered findings on the merits of the ATS claim and that we have jurisdiction to vacate those findings. In support, he notes that some courts have entertained appeals by prevailing parties for the purpose of vacating unfavorable merits-related findings entered by lower courts after their subject-matter jurisdiction has dissipated. See, e.g., Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1077 (9th Cir. 2001) ; New Jersey v. Heldor Indus., Inc., 989 F.2d 702, 708-09 (3d Cir. 1993).3 Attempting to draw a parallel, Lively submits that the court below adjudicated SMUG's claim under international law even after recognizing the absence of federal subject-matter jurisdiction over that claim.


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