The Week in Federal Appellate Jurisdiction: October 17–23, 2021

Last week saw another court hold that defendants can immediately appeal the denial of FSIA immunity in a criminal case. In other decisions, the Eleventh Circuit extended pendent appellate jurisdiction to review a summary-judgment decision as part of an injunction appeal. And the Ninth Circuit held that the expiration of the time to amend a dismissed complaint resulted in a final, appealable decision.

• The Second Circuit Held That Defendants Can Immediately Appeal From Refusals to Dismiss a Criminal Indictment on FSIA-Immunity Grounds
• The Eleventh Circuit Used Pendent Appellate Jurisdiction to Review a Summary-Judgment Decision as Part of an Injunction Appeal
• The Ninth Circuit on Springing Finality

The Second Circuit Held That Defendants Can Immediately Appeal From Refusals to Dismiss a Criminal Indictment on FSIA-Immunity Grounds

In United States v. Turkiye Halk Bankasi A.S., the Second Circuit held that defendants can immediately appeal from the denial of a motion to dismiss an indictment due to the Foreign Sovereign Immunities Act (commonly initialized as “FSIA”).

The defendant in Turkiye Halk Bankasi was a commercial bank that was majority-owned by Turkey. A grand jury indicted the bank for its participation in a money-laundering scheme. The bank moved to dismiss the indictment, arguing that Turkey’s majority ownership of the bank made it immune from criminal prosecution under the FSIA and that no exception to the FSIA applied. The district court denied the motion. The bank then appealed to the Second Circuit.

The Second Circuit ultimately affirmed the district court’s refusal to dismiss the indictment. Before doing so, however, the court of appeals had to determine its jurisdiction. Although the Supreme Court has never weighed in on the matter, the courts of appeals hold that denials of FSIA immunity are immediately appealable via the collateral-order doctrine. That doctrine deems certain district court decisions final when they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. But most decisions on FSIA appeals—including the Second Circuit’s—come from civil cases. The Second Circuit had not determined whether defendants could appeal denials of FSIA immunity in criminal cases. And the Supreme Court has repeatedly said that the collateral-order doctrine should be applied with “utmost strictness” in criminal cases.

The Second Circuit nevertheless held that denials of FSIA immunity satisfy all of the collateral-order doctrine’s requirements:

First, the District Court’s sovereign immunity determination conclusively determined the issue against Halkbank. Second, Halkbank’s professed entitlement to immunity is an issue distinct from the merits of the charges at issue. Third, an “appeal from [a] final judgment cannot repair the damage caused to a sovereign that is improperly required to litigate a case.” Put another way, “the denial of immunity is effectively unreviewable after final judgment because defendants must litigate the case to reach judgment and, thus, lose the very immunity from suit to which they claim to be entitled.”

The court accordingly held “that a threshold sovereign immunity determination is immediately appealable pursuant to the collateral order doctrine—even in a criminal case.” Note, the Eleventh Circuit reached the same conclusion a few months ago.

United States v. Turkiye Halk Bankasi A.S., 2021 WL 4929002 (2d Cir. Oct. 22, 2021), available at CourtListener and Westlaw.

The Eleventh Circuit Used Pendent Appellate Jurisdiction to Review a Summary-Judgment Decision as Part of an Injunction Appeal

In Smith v. Commissioner, the Eleventh Circuit extended pendent appellate jurisdiction over a summary-judgment decision in an appeal from the denial of a preliminary injunction.

Smith involved a death-row inmate’s challenge to the method of his execution. Alabama law gives those on death row a 30-day window to choose one of two methods of execution. The plaintiff in Smith claimed that the defendants violated the Americans with Disabilities Act by not providing reasonable accommodations to ensure that he understood this choice. The district court initially denied the plaintiff’s motion for partial summary judgment, which sought an order that the plaintiff had established one element of his claim, namely that the defendants had discriminated against him because of his disability. The district court later denied the plaintiff’s request for a preliminary injunction that would enjoin his execution by the default method. The plaintiff then appealed.

The Eleventh Circuit had jurisdiction over the denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). The court also extended pendent appellate jurisdiction over the summary-judgment decision. The interlocutory denial of summary judgment is normally not appealable. But pendent appellate jurisdiction allows a court of appeals to extend jurisdiction to a non-appealable issue or order in certain circumstances. The Eleventh Circuit explained that the district court’s summary-judgment decision formed the basis for the subsequent denial of an injunction. Reviewing the summary-judgment decision was thus necessary to meaningfully review the injunction decision.

The Eleventh Circuit went on to affirm the denial of a preliminary injunction.

Smith v. Commissioner, 2021 WL 4916001 (11th Cir. Oct 21, 2021), available at the Eleventh Circuit and Westlaw.

The Ninth Circuit on Springing Finality

In Kristek v. Travelers Home & Marine Insurance Co., the Ninth Circuit said that a dismissal became final when the time for amending the complaint had passed.

The district court in Kristek dismissed a plaintiff’s complaint without prejudice. The district court gave the plaintiff ten days to amend the complaint. But if the plaintiff did not do so, “the district court would consider it an admission that she could not plead plausible claims and would dismiss with prejudice.” On the tenth day, the plaintiff filed a notice of appeal. But it appears that the district court never thereafter entered a with-prejudice dismissal.

The Ninth Circuit nevertheless held that it had appellate jurisdiction. If not for granting leave to amend, the district court’s dismissal would have been that court’s last action in the case. That was enough to infer that the expiration of the amendment window resulted in a with-prejudice dismissal. The plaintiff’s notice of appeal, filed right before that time to amend expired, related forward to that inferred dismissal.

Kristek v. Travelers Home & Marine Insurance Co., 2021 WL 4924748 (9th Cir. Oct. 21, 2021), available at the Ninth Circuit and Westlaw.