The Week in Federal Appellate Jurisdiction: January 24–30, 2021

Last week, the D.C. Circuit addressed finality and appealability in the military-commission context. The Fourth Circuit reminded everyone that Rule 54(b) partial judgments need to include that rule’s magic words (and an explanation). Plus appeals involving anti-SLAPP denials and challenges to the factual basis of qualified-immunity denials. Let’s start with a new cert petition on state-action antitrust immunity.

• New Cert Petition on State-Action-Immunity Appeals
• The D.C. Circuit on Finality in the Military-Commission Context
• A Fourth Circuit Reminder on Rule 54(b)’s Magic Words
• Quick Notes

New Cert Petition on State-Action-Immunity Appeals

A new cert petition asks the Supreme Court if defendants can immediately appeal from the denial of state-action antitrust (or Parker) immunity. The courts of appeals have split on this issue. The Supreme Court was set to resolve this circuit split a few years ago in Salt River Project v. Tesla Energy Operations. But the case settled before argument.

The case is Louisiana Real Estate Appraisers Board v. FTC. The response is due March 1, 2021. For more on state-action-immunity appeals, see my post on the Eleventh Circuit’s recent split decision on the issue: The Eleventh Circuit Divided Over State-Action Appeals.

Petition for a Writ of Certiorari, Louisiana Real Estate Appraisers Board v. FTC, No. 20-1018 (Jan. 22, 2021), available at the Supreme Court and Westlaw.

The D.C. Circuit on Finality in the Military-Commission Context

In Sundel v. United States, the D.C. Circuit held that a lawyer could not immediately appeal from a military court’s order barring the lawyer from accessing a classified hearing.

The lawyer was part of the Military Commissions Defense Organization, which represents some defendants detained at Guantanamo Bay. The lawyer sought access to a classified hearing, despite not representing anyone in the case. The military courts denied access to the hearing. The lawyer then appealed that decision to the D.C. Circuit.

The D.C. Circuit held that it lacked jurisdiction over the appeal. The statute giving the D.C. Circuit appellate jurisdiction over military commission decisions—10 U.S.C. § 950g(a)—allows for appeals from only “final judgment[s]” rendered by a commission. And “[i]n the military commission system, a final judgment is akin to a conviction.” Here, there was no conviction. So there was no appellate jurisdiction.

The D.C. Circuit also held that the collateral-order doctrine did not apply. That doctrine is an interpretation of 28 U.S.C. § 1291, which gives the courts of appeals appellate jurisdiction over the “final decisions” of district courts. Congress chose a narrower term—“final judgment”—in the military-commission context. So even if the collateral-order doctrine existed in that context, there still needed to be a judgment for the D.C. Circuit to have appellate jurisdiction.

Sundel v. United States, 2021 WL 244659 (D.C. Cir. Jan. 26, 2021), available at the D.C. Circuit and Westlaw.

A Fourth Circuit Reminder on Rule 54(b)’s Magic Words

In Gelin v. Shuman, the Fourth Circuit dismissed a Rule 54(b) appeal because the district court had not used that rule’s magic words or explained the reason for the appeal.

Federal Rule of Civil Procedure 54(b) authorizes district courts to enter a partial judgment on some (but not all) of the claims in a multi-claim suit. That partial judgment is then final and appealable. But Rule 54(b) says that a partial judgment is proper only when there is “no just reason for delay.”

The district court in Gelin entered a partial judgment on some of the plaintiffs’ claims. But the Fourth Circuit determined that the partial judgment was deficient. For one thing, it did not use Rule 54(b)’s magic words—the district court never said that there was no just reason for delay. For another, the district court did not explain why a Rule 54(b) partial judgment was appropriate. The Fourth Circuit accordingly dismissed the appeal.

Gelin v. Shuman, 2021 WL 248659 (4th Cir. Jan. 26, 2021), available at the Fourth Circuit and Westlaw.

Quick Notes

In RLI Insurance Co. v. Langan Engineering, the Ninth Circuit said that the denial of a plaintiff’s anti-SLAPP motion is just as appealable as the denial of a defendant’s anti-SLAPP motion. The opinion is light on details. But it looks like the defendant filed a counterclaim against the plaintiff, to which the plaintiff responded with a motion under California’s anti-SLAPP law. The district court denied that motion, and the plaintiff appealed. On appeal, the defendant argued that the denial was not appealable because a plaintiff (not a defendant) filed the anti-SLAPP motion. The Ninth Circuit easily rejected this argument, noting that it’s the denial of an anti-SLAPP motion that is appealable—regardless of who files it.

RLI Insurance Co. v. Langan Engineering, 2021 WL 238404 (9th Cir. Jan. 25, 2021), available at the Ninth Circuit and Westlaw.

And in Jackson v. Soltanian-Zadeh, the Ninth Circuit dismissed a qualified-immunity appeal to the extent the defendants challenged the factual basis for the district court’s immunity denial. Again, details are few. It looks like the plaintiff brought a deliberate indifference claim against a prison doctor. The district court denied the doctor’s request for qualified immunity, and the doctor appealed. The Ninth Circuit held that the plaintiff had shown a violation of clearly established law and affirmed the denial of immunity. The Ninth Circuit also noted that the doctor challenged the factual basis for the district court’s decision, which the court lacked jurisdiction to review in a qualified-immunity appeal.

Jackson v. Soltanian-Zadeh, 2021 WL 285686 (9th Cir. Jan. 28, 2021), available at the Ninth Circuit and Westlaw.