The Week in Federal Appellate Jurisdiction: August 25–31, 2019

Last week saw some interesting filings and a handful of notable cases. Let’s start with two en banc petitions in cases that I’ve previously covered on this site.

Petition for rehearing en banc filed in the Fourth Circuit’s emoluments appeal

The District of Columbia and Maryland have moved for rehearing en banc in the Fourth Circuit’s emoluments appeals. The major appellate-jurisdiction issue in those appeals was the court’s use of mandamus to order a district court to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). I criticized that decision at the time, as did Alan Morrison in a guest post on this site. Recall also that the D.C. Circuit purported to deny a similar request for mandamus, though it also said that the district court was wrong in refusing to certify the decision for a § 1292(b) appeal and told the district court to re-examine that decision.

The petition for rehearing en banc argues that the Fourth Circuit’s decision was unprecedented, was wrong, and will have bad consequences. I agree with at least the latter two points (I can’t vouch for the first). But I have no insight on whether the Fourth Circuit will have any interest in reconsidering the matter.

Petition for Panel Rehearing or Rehearing En Banc, In re Trump, No. 18-2486 (4th Cir.), available at the D.C. Attorney General’s website.

Petition for rehearing en banc filed in the Fifth Circuit’s “zombie action”

The plaintiffs have moved for rehearing en banc in the recent Fifth Circuit case on appeals from dismissals without prejudice. Recall that the plaintiffs in Williams v. Taylor Seidenbach, Inc. had voluntarily dismissed some of their claims without prejudice and then sought to appeal those that were dismissed on the merits. But the Fifth Circuit twice held that it lacked jurisdiction over the appeal. It first held that the dismissal without prejudice kept the district court’s decision from being “final” for purposes of 28 U.S.C. § 1291. And when the plaintiffs tried to return to the district court to change their voluntarily dismissals to be with prejudice, the Fifth Circuit held that the case was already over and the district court could not change the terms of the dismissal.

I have already explained why this decision was absurd and warrants rehearing en banc. And given Judge Haynes’s concurrence in the second appeal—in which she said the court “should take this case en banc to correct this egregious mess”—I expect we will at least see a court-wide vote on the petition.

I haven’t yet found a publicly available copy of the petition. I’ll update if I do.

Update: A new docket entry says the court will not act on the petition because it was not filed on time. So maybe we won’t see a court-wide vote on the petition….

New cert petition on the appealability of order staying a habeas action under Rhines v. Weber

A new cert petition asks whether orders staying federal habeas actions are immediately appealable under the collateral-order doctrine.

State prisoners filing federal habeas petitions generally must exhaust their claims in state court before proceeding on those claims in federal court. They can run into trouble if they file a “mixed” petition—one that contains both exhausted and non-exhausted claims. If the district court dismisses the petition for lack of exhaustion, the prisoner might be deprived of any federal habeas review due to the strict time limits on seeking that review. To avoid this loss of habeas rights, district courts can enter what’s called a “Rhines stay.” Named after the Supreme Court’s decision in Rhines v. Weber, these stays pause the adjudication of mixed habeas petitions while prisoners exhausts any remaining state claims.

In May, a divided panel of the Tenth Circuit held that these stay orders are not appealable. Utah has now sought cert in this case, arguing that Rhines stays are immediately appealable under the collateral-order doctrine.

Petition for a Writ of Certiorari, Benzon v. Kell, No. 19-239, available at the Supreme Court and Westlaw.

Response brief filed in second Xitronix cert petition

I’ve previously covered the cert petitions in Xitronix and KLA Tencor’s (and the Fifth and Federal Circuit’s) fight over whether the Federal Circuit has exclusive jurisdiction in appeals of Walker Process claims. The parties have already fully briefed the petition from the Fifth Circuit’s decision transferring the case back to the Federal Circuit. And now the brief in opposition to the second cert petition—the one from the Federal Circuit’s decision to accept the case—has been filed. According to the brief’s introduction, the response largely repeats the points made in the opposition to the first cert petition.

Brief in Opposition, Xitronix Corp. v. KLA-Tencor Corp., No. 19-58, available at the Supreme Court and Westlaw.

The First Circuit invoked its hypothetical jurisdiction to affirm on the merits

In Cowels v. FBI, the First Circuit upheld the FBI’s decision to not upload a DNA sample into its national database. The plaintiffs in Cowels had been convicted of murder in the mid 1990s but, after new testing of evidence raised doubts about their convictions, were granted a new trial. They asked the FBI to upload a DNA sample taken from the scene of the crime into the FBI’s national DNA database. But the FBI refused. And when the plaintiffs sued to require the FBI to do so, the district court dismissed the suit upon concluding that the FBI’s decision was not reviewable in court.

On appeal, the First Circuit said that the jurisdictional question—whether the FBI’s decision was subject to judicial review—was a difficult one. But the court avoided answering it under its hypothetical-jurisdiction rule. Because the jurisdictional question was a statutory (not constitutional) one, and because the court could easily resolve the case against the party invoking federal jurisdiction, the court assumed jurisdiction over the case for purposes of deciding the appeal.

Cowels v. FBI, 2019 WL 4010295 (1st Cir. 2019), available at the First Circuit and Westlaw.

The Eleventh Circuit heard an interlocutory admiralty appeal in a tort action against a cruise line

In Azzia v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that the special rules for appeals in admiralty actions gave it jurisdiction to review an order dismissing one of two claims brought against a cruise line. Parents of a child that almost drowned in a pool on a Royal Caribbean ship sued the cruise line. They brought two kinds of claims: a claim for negligence on the child’s behalf and negligent-infliction-of-emotional-distress claims on their own and their other children’s behalf. The district court dismissed the emotional-distress claims, holding that the family members were not in the “zone of danger” at the time the child almost drowned. The family members then appealed that dismissal.

Normally a court of appeals would lack jurisdiction in this scenario; a decision resolving some (but not all) claims in a multi-claim action is not final or appealable absent a Rule 54(b) certification. But 28 U.S.C. § 1292(a)(3) gives the courts of appeals jurisdiction over interlocutory orders “determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.”

The Eleventh Circuit held that the plaintiffs’ claims fell under the district court’s admiralty or maritime jurisdiction. This was the case even though the plaintiffs did not invoke that jurisdiction; under Rule 9(h)(1), “[a] claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.” The plaintiffs’ interlocutory appeal was thus proper under § 1292(a)(3).

Azzia v. Royal Caribbean Cruises, Ltd., 2019 WL 4072012 (11th Cir. 2019), available at the Eleventh Circuit and Westlaw.

The Sixth Circuit found no blatant contradiction that would support interlocutory appellate jurisdiction over a qualified-immunity appeal

In Moran v. Rogers, the Sixth Circuit dismissed an interlocutory qualified-immunity appeal that challenged only the district court’s conclusion that genuine fact issues precluded summary judgment. The defendant in Moran appealed only the district court’s factual assumptions—that the officer had delayed three hours in seeking medical care for the plaintiff’s serious medical needs. The court held that it lacked jurisdiction over the district court’s factual assumptions; jurisdiction in these appeals generally extends only to the legal question of whether (given the district court’s assumed facts) the defendant violated clearly established law. And Scott v. Harris’s blatant-contradiction exception to that general limit on appellate jurisdiction did not apply; nothing in the record blatantly contradicted the district court’s assumptions.

Moran v. Rogers, 2019 WL 4060161 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.

The Third Circuit reviewed a decision not mentioned in a notice of appeal

In Verma v. 3001 Castor, Inc., the Third Circuit affirmed a jury award of $4.5 million in unpaid minimum wages to dancers at the Penthouse Club. On appeal, the Club argued that the dancers were not employees but were instead independent contractors. The district court had rejected that argument in partially granting the dancers’ motion for summary judgment. But the Club did not mention that partial grant of summary judgment in its notice of appeal. It instead designated the district court’s post-verdict denial of the Club’s motion for reconsideration.

The Third Circuit nevertheless held that it had jurisdiction to address the employee/independent-contractor issue. As the court saw it, the initial summary-judgment decision and the denial of reconsideration both related to the employee/independent-contractor issue, the Club’s intention to appeal the issue was obvious, and the plaintiffs were not prejudiced by the Club’s failure to designate the earlier decision in its notice.

This shouldn’t have even been an issue. Granted, Appellate Rule 3(c) requires that appellants designate the judgment or order they’re appealing. This requirement helps the appellate court identify the order (1) that gives it jurisdiction and (2) from which the time for filing the notice should be calculated. Yet several courts have treated Rule 3(c)’s order-designation requirement as affecting the scope of appellate review: naming particular decisions in the notice can limit the appeal to those decisions and exclude others.

Recently proposed amendments to Rule 3(c) would fix this misreading of the rule.

Verma v. 3001 Castor, Inc., 2019 WL 4125220 (3d Cir. 2019), available at the Third Circuit and Westlaw.

The Fifth Circuit on appealing consent decrees and cumulative finality

In EEOC v. JC Wings Enterprises, L.L.C., the Fifth Circuit pondered the appealability of consent decrees and held that a premature notice of appeal was not saved by the entry of a consent decree.

The case involved an age-discrimination suit brought by the EEOC. The former employee whose charge instigated the suit moved to join the proceedings. When the district court denied that motion, the employee sought to intervene. That, too, was denied. The former employee then filed his notice of appeal. And shortly thereafter, the EEOC and former employer entered into a consent decree that resolved the suit.

The Fifth Circuit’s appellate-jurisdiction analysis started off a bit odd. The court questioned whether the consent decree was a final decision within the meaning of 28 U.S.C. § 1291; the Fifth Circuit noted that the district court did not dismiss the case and retained jurisdiction to enforce the decree.

This shouldn’t have posed any problems. Courts normally treat the pre-judgment and post-judgment stages of litigation as separate proceedings for appeal purposes; parties can appeal any pre-judgment decisions after entry of the judgment, and they can appeal any post-judgment decisions once post-judgment proceedings have wrapped up. A consent decree should thus mark the end of one stage of litigation and be appealable. Granted, there might not be many appeals from consent decrees themselves; the parties have agreed to entry of the decree and thus have little reason to appeal at that time. But that shouldn’t stop other litigants (like the non-party in JC Wings) from appealing.

The JC Wings court then held that—even if the consent decree was final and appealable—the court lacked jurisdiction to review the joinder issue due to the premature notice of appeal. Recall that the former employee had filed his notice of appeal before entry of the consent decree. As the Fifth Circuit saw matters, this was an appeal from a clearly interlocutory decision that could not be saved by the subsequent consent decree.

This latter issue was one of cumulative finality—when subsequent events can save a premature notice of appeal. Most courts address cumulative-finality issues through Appellate Rule 4(a)(2), which provides that “[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” Most courts have held that Rule 4(a)(2) does not save notices of appeal filed after purely interlocutory decisions that could not be rendered final via a Rule 54(b) certification. But the law is hardly clear; I showed in an article last year that courts are all over the map, and several circuits—including the Fifth—have issued inconsistent decisions on these matters.

EEOC v. JC Wings Enterprises, L.L.C., 2019 WL 4137410 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.