The Week in Federal Appellate Jurisdiction: December 6–12, 2020

Last week, the Seventh Circuit addressed finality and consolidated complaints in the shaky-cheese multidistrict litigation. The en banc Eleventh Circuit elected to re-examine its law on appealing the state-action antitrust defense. In cert-stage developments, the Supreme Court received a second petition on the scope of § 1447(d) remand appeals and a new petition on the use of mandamus in criminal cases. And the Ninth Circuit issued two opinions of note. One involved jurisdiction in immigration appeals. The other rejected an attempt to challenge the factual basis of a qualified-immunity denial.

• The Seventh Circuit on MDL Appeals Involving Consolidated Pleadings
• The Eleventh Circuit Ordered Rehearing En Banc in a State-Action Antitrust/Parker Case
• Another Cert Petition on § 1447(d) Appeals
• New Cert Petition on Mandamus in Criminal Cases
• The Ninth Circuit on Motions to Reopen Immigration Proceedings and Credible-Fear Determinations
• The Ninth Circuit Rejected a Factual Challenge in a Qualified-Immunity Appeal

The Seventh Circuit on MDL Appeals Involving Consolidated Pleadings

Actions consolidated in multidistrict litigation (or MDL) normally retain their individual character for finality purposes. So the resolution of a single action in an MDL is final and appealable regardless of whether other actions remain pending.

Things can get complicated, however, if the parties file consolidated pleadings. Those consolidated pleadings can divide up what was originally an individual action into separate actions. What does that do to MDL appeals? Are the individual actions still individual for finality purposes, such that the resolution of all claims in an original complaint is appealable even if those claims are now spread out across multiple consolidated complaints? Or are actions now measured by the consolidated complaints, such that resolution of all claims in a consolidated complaint is final?

In Bell v. Publix Super Markets, Inc., the Seventh Circuit held that the time to appeal runs from the resolution of all claims in a consolidated complaint so long as that complaint superseded the individual ones. The case involved five consolidated complaints against sellers and manufacturers of shaky cheese—the powdered Parmesan cheese that comes in green tubes. The district court dismissed all of the claims in two of the consolidated complaints. The plaintiffs then waited nearly a year—when the district court entered a Rule 54(b) partial judgment on similar claims in the other complaints—to appeal. That was too late, the Seventh Circuit concluded. Those consolidated complaints superseded the original collection of complaints. So the resolution of all claims in a consolidated complaint marked the end of an action.

The Seventh Circuit also urged district courts and plaintiffs to be as clear as possible on whether consolidated complaints supersede the originals; confusion over this issue can lead to parties forfeiting their right to appeal.

For more, see my post MDL Appeals, Consolidated Complaints & Parmesan Cheese.

Bell v. Publix Super Markets, Inc., 2020 WL 7137786 (7th Cir. Dec. 7, 2020), available at the Seventh Circuit and Westlaw.

The Eleventh Circuit Ordered Rehearing En Banc in a State-Action Antitrust/Parker Case

The en banc Eleventh Circuit will rehear SmileDirectClub, LLC v. Battle, in which a panel of the court affirmed an interlocutory denial of a state-action antitrust/Parker defense. The court probably wants to address whether defendants can immediately appeal from the denial of a Parker defense, which Judge Jordan (concurring in the panel opinion) suggested the court do.

For more, see my post Rehearing En Banc Granted in State-Action Antitrust Appeal.

Order Granting Rehearing En Banc, SmileDirectClub, LLC v. Battle, 2020 WL 7214148 (11th Cir. Dec. 8, 2020), available at the Eleventh Circuit and Westlaw.

Another Cert Petition on § 1447(d) Appeals

Several recent climate-change lawsuits have required the courts of appeals to address the scope of remand appeals under 28 U.S.C. § 1447(d). That subsection generally prohibits appellate review of remand orders. But it includes two exceptions: when removal was based on the federal-officer removal statute or the civil-rights removal statute. Four courts of appeals have recently held that when an exception to § 1447(d) applies, the scope of the appeal encompasses only the exception. That is, the court of appeals can address only the excepted ground for removal; all other potential grounds for removal are outside of the court’s appellate jurisdiction.

The Supreme Court recently granted cert in one of these cases: BP P.L.C. v. Mayor & City Council of Baltimore, which comes from the Fourth Circuit. The defendants in the Tenth Circuit case have now petitioned for cert, too. The petition presents the same question as BP and asks the Supreme Court to hold the petition pending the decision in that case.

You can read more about the Tenth Circuit’s decision at The Tenth Circuit on the Scope of § 1447(d) Remand Appeals.

Petition for a Writ of Certiorari, Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners, No. 20-783 (Dec. 4, 2020), available at the Supreme Court and Westlaw.

New Cert Petition on Mandamus in Criminal Cases

Another new cert petition asks the Court if “the ultimate availability of post-judgment appellate review categorically bars mandamus relief.” I can’t find the Fifth Circuit’s underlying decision. But according to the petition, the case involves a long-sealed indictment (nearly 10 years) and a motion to dismiss on speedy-trial grounds. The district court denied the motion to dismiss. And the Fifth Circuit refused to reverse that decision via mandamus, concluding that post-judgment review of the issue was adequate.

The case is Khoury v. United States, and the response is due January 11, 2020.

Petition for a Writ of Certiorari, Khoury v. United States, No. 20-793 (Dec. 7, 2020), available at the Supreme Court and Westlaw.

The Ninth Circuit on Motions to Reopen Immigration Proceedings and Credible-Fear Determinations

In Singh v. Barr, the Ninth Circuit held that it lacked jurisdiction to review an immigration judge’s denial of a motion to reopen a credible-fear determination.

Singh involved two asylum petitions in which the petitioners claimed to fear returning to India. Immigration judges concluded that the petitioners were not credible. Both petitioners eventually moved to reopen the proceedings and challenge the negative credible-fear determinations. The immigration judges denied these requests. The petitioners then sought review in the Ninth Circuit.

The Ninth Circuit held that it lacked jurisdiction. Under immigration law’s somewhat convoluted jurisdiction-stripping provisions, the court of appeals could not address the underlying credible-fear determination. And that meant the court of appeals also lacked jurisdiction to review the refusal to reopen proceedings to address the petitioners’ credibility.

Singh v. Barr, 2020 WL 7234974 (9th Cir. Dec. 9, 2020), available at the Ninth Circuit and Westlaw.

The Ninth Circuit Rejected a Factual Challenge in a Qualified-Immunity Appeal

Finally, in Penaloza v. City of Rialto, the Ninth Circuit rejected a defendant’s attempt to challenge the factual basis for a qualified-immunity denial.

The case involved excessive-force claims stemming from the use of a police dog. The plaintiff claimed that she was on the ground, neither fleeing nor resisting, when the dog bit her leg and caused serious injuries. According to the district court, a reasonable jury could find that a police officer intentionally released the dog on the plaintiff. The district court accordingly denied that officer’s request for qualified immunity.

The officer then appealed. And on appeal, he argued that he never intended for the dog to bite the plaintiff. But that was a fact question, and (the district court determined) a jury could resolve that question against the officer. The officer was thus stuck with that fact for purposes of the qualified-immunity appeal. And the law was clear: a police officer cannot intentionally release a dog to bite someone who was neither fleeing nor posed any threat of harm.

Although it’s not evident from the Ninth Circuit’s opinion, Penaloza is a unique qualified-immunity appeal. After the defendants filed their notice of appeal, the district court and the Ninth Circuit refused to stay the proceedings. The case actually went to trial while the appeal was pending, although that trial produced a hung jury.

Penaloza v. City of Rialto, 2020 WL 7206904 (9th Cir. Dec. 7, 2020), available at the Ninth Circuit and Westlaw.