The Week in Federal Appellate Jurisdiction: May 23–29, 2021

Quick roundup this week. There were two cert denials of note. One asked if denied summary-judgment motions preserve purely legal issues. The other asked the Supreme Court to weigh in on the finality trap. In the courts of appeals, the Eleventh Circuit held that defendants must obtain a certificate of appealability to challenge a district court’s decision to correct the improper part of a sentence (rather than resentence in full). And the D.C. Circuit determined that a district court had intended to dismiss an entire action, not just a complaint.

• Cert Denied on Preservation via Summary-Judgment Denials
• Cert Denied on the Ninth Circuit’s Version of the Finality Trap
• The Eleventh Circuit on Certificates of Appealability and Challenging the Choice of Remedy
• The D.C. Circuit on Dismissals of Complaints and Actions

Cert Denied on Preservation via Summary-Judgment Denials

The Supreme Court denied cert in Ericsson Inc. v. TCL Communication Technology Holdings Ltd..

The case asked if a denied summary-judgment motion preserved a purely legal issue for appeal. The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal. And that’s an issue on which the courts have split.

So we’ll have to keep waiting for the Court to resolve this split. You can read more about the underlying issue in these posts:

• New Cert Petition on “Appealing” Summary-Judgment Denials.
• The Second Circuit Split on Appealing Summary-Judgment Denials.

Cert Denied on the Ninth Circuit’s Version of the Finality Trap

The Court also denied cert in Starline Tours of Hollywood, Inc. v. EHM Productions, Inc..

The case asked the Supreme Court to weigh in on the finality trap. The trap can arise after a party voluntarily dismisses some of its claims without prejudice and then tries to appeal. This scenario makes courts of appeals suspicious, as parties sometimes use these voluntary dismissals to manufacture an interlocutory appeal. The courts have developed a variety of ways to stop parties from doing so. And some of those methods create a trap. The court of appeals deems the dismissal non-final and thus non-appealable. But the court also leaves no avenue for the appealing party to make the underlying decision final. The party is then left in limbo. The case is over and unchangeable in the district court. But it’s not final for purposes of appeal.

Someone will need to eventually fix the finality trap. If the Supreme Court doesn’t do so, the Rules Committee might be a good option. You can read more about the finality trap in these posts:

• Another Cert Petition on the Finality Trap.
• Another Victim of the Finality Trap.
• Avoiding—but Not Disarming—the Finality Trap.
• The Fifth Circuit & the Finality Trap.

The Eleventh Circuit on Certificates of Appealability and Challenging the Choice of Remedy

In United States v. Cody, the Eleventh Circuit held that a certificate of appealability is necessary to challenge a district court’s decision to correct an illegal sentence rather than perform a full resentencing.

The defendant in Cody had been convicted of several offenses and sentenced to almost 25 years in prison. In a later proceeding under 28 U.S.C. § 2255, the district court determined that the sentence for one of those offenses was improper. But rather than resentence the defendant in full, the district court corrected only the improper sentence. The district court and the Eleventh Circuit both denied the defendant’s request for a certificate of appealability. The defendant then appealed anyway.

The Eleventh Circuit held that a certificate of appealability was necessary. Under 28 U.S.C. § 2253(c)(1), a judge must issue a certificate of appealability before defendants can appeal a final order in a § 2255 proceeding. And the choice of a remedy in a § 2255 proceeding is part of that proceeding. Granted, the implementation of that remedy is separate from that proceeding, and no certificate of appealability is necessary to challenge that implementation. So, for example, if a court orders resentencing in a § 2255 proceeding, the defendant does not need a certificate to argue that the district court misapplied the Sentencing Guidelines in determining the new sentence. But the choice of remedy—whether to correct an improper sentence or resentence entirely—is part of a § 2255 proceeding.

A certificate of appealability was thus necessary to appeal the district court’s choice of remedy in Cody. So the Eleventh Circuit dismissed the appeal for a lack of jurisdiction. One last note: the opinion notes some tension between its holding and the Fourth Circuit’s decision in United States v. Hadden.

United States v. Cody, 2021 WL 2172173 (11th Cir. May 28, 2021), available at the Eleventh Circuit and Westlaw.

The D.C. Circuit on Dismissals of Complaints and Actions

In Marine Engineers’ Beneficial Association v. Liberty Maritime Corp., the D.C. Circuit applied its test for determining whether a district court dismissed an action or an entire complaint.

Most courts distinguish between the dismissal of an action (which is final and appealable) and the dismissal of just a complaint (which is not). When a dismissal is ambiguous, the D.C. Circuit looks to the context of the dismissal: the district court’s language, the language of the motion to dismiss, and the course of the litigation.

In Marine Engineers’, all three pointed towards the dismissal of an action. The district court thought there were no more issues to resolve. The motion to dismiss sought to end the entire action. And the dismissal order directed the parties to proceed in a different forum.

Marine Engineers’ Beneficial Association v. Liberty Maritime Corp., 2021 WL 2096367 (D.C. Cir. May 25, 2021), available at the D.C. Circuit and Westlaw.