Derivative sovereign-immunity appeals, appealing the duty to defend, what counts as a Rule 59(e) motion, relating forward notices of appeal, the jurisdictionality of the cross-appeal deadline, and reviewing punitive-damages requests in a qualified-immunity appeal.
January 19, 2022
Last week, the Ninth Circuit held that defendants cannot use the collateral-order doctrine to immediately appeal from the denial of derivative sovereign immunity. The Eleventh Circuit concluded that a duty-to-defend order was an appealable injunction. The Sixth Circuit rejected an argument that a Rule 59(e) motion was not good enough to delay the start of the appeal clock. The Tenth Circuit related forward a premature notice of appeal. The Second Circuit excused the late filing of a cross-appeal, though it noted that not everyone agrees that the filing deadline is non-jurisdictional. And the Fifth Circuit refused to review the availability of punitive damages while hearing a qualified-immunity appeal.
- The Ninth Circuit Held That Defendants Cannot Immediately Appeal From the Denial of Derivative Sovereign Immunity
- The Eleventh Circuit Allowed an Injunction Appeal from a Duty-to-Defend Decision
- The Sixth Circuit on What’s Needed for a Rule 59(e) Motion to Delay the Start of the Appeal Clock
- The Tenth Circuit Related Forward a Notice of Appeal
- The Second Circuit Applied Its Rule That the Deadline for Cross-Appeals Is Not Jurisdictional
- The Fifth Circuit Dismissed a Qualified-Immunity Appeal Insofar as It Challenged the Availability of Punitive Damages
The Ninth Circuit Held That Defendants Cannot Immediately Appeal From the Denial of Derivative Sovereign Immunity
In Childs v. San Diego Family Housing LLC, the Ninth Circuit held that the denial of derivative sovereign immunity is not immediately appealable via the collateral-order doctrine.
Childs involved claims against providers of military housing. The defendants moved to dismiss the complaint for lack of subject-matter jurisdiction, arguing that they had derivative sovereign immunity as government contractors acting at the direction of the federal government. The district court denied the motion, holding that derivative sovereign immunity did not apply. The defendants then appealed.
The Ninth Circuit dismissed the appeal for a lack of jurisdiction. The only proffered ground for appellate jurisdiction was the collateral-order doctrine. That doctrine treats certain kinds of district court decisions as final so long as the decision (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment.
Denials of derivative sovereign immunity, the Ninth Circuit concluded, fail the third requirement. To be effectively unreviewable, an erroneous rejection of a defense must “imperil a substantial public interest.” And the interest that derivative sovereign immunity serves—“extending the federal government’s immunity from liability, in narrow circumstances, to government agents carrying out the federal government’s directions”—doesn’t cut it. Derivative sovereign immunity is not a protection from litigation itself. It is instead a defense from liability—a right to prevail at trial and not pay damages. This interest is insufficient to deviate from the normal appeal rules. In fact, “immediate appellate review of such an order would be simply abbreviating litigation troublesome to Government employees, which the Supreme Court has held is an insufficient basis to apply the collateral order doctrine.” (Quotation marks omitted.)
Note, the Supreme Court recently denied cert on a petition that asked whether denials of derivative sovereign immunity were appealable via the collateral-order doctrine.
Childs v. San Diego Family Housing LLC, 2022 WL 129140 (9th Cir. Jan. 14, 2022), available at the Ninth Circuit and Westlaw.
The Eleventh Circuit Allowed an Injunction Appeal from a Duty-to-Defend Decision
In James River Insurance Co. v. Ultratec Special Effects Inc., the Eleventh Circuit held that a ruling on an insurer’s duty to defend was an appealable injunction.
James River stemmed from an explosion at the defendant’s workplace. The defendant’s insurer brought a declaratory-judgment action, seeking a decision on its duties to defend and indemnify the defendant. The district court held that the insurance company had a duty to defend. But the district court stayed any decision on the duty to indemnify; the district court would return to that issue once liability was determined. The insurance company then appealed.
The Eleventh Circuit held that it had jurisdiction over the appeal under 28 U.S.C. § 1292(a)(1), which permits immediate appeals from many orders involving injunctive relief. Although the duty-to-defend order was not called an injunction, it had sufficient injunctive qualities to be appealable. Those qualities include an order that “is directed to a party, is enforceable by contempt, and provides relief on the merits.” The district court’s decision required the insurance company to defend the defendants. It was thus directed to a party and rejected some of the relief that the insurance company sought. And although it was not expressly enforceable by contempt, the Eleventh Circuit doubted that the district court would permit the insurance company to not pay defense costs without consequence.
James River Insurance Co. v. Ultratec Special Effects Inc., 2022 WL 121914 (Jan. 13, 2022), available at the Eleventh Circuit and Westlaw.
The Sixth Circuit on What’s Needed for a Rule 59(e) Motion to Delay the Start of the Appeal Clock
In Stover v. Amazon.com, LLC, the Sixth Circuit said that a Rule 59(e) motion delayed the start of the appeal clock so long as the motion was not “frivolous or wholly lacking in particularity.” (Cleaned up.)
The appellant in Stover filed a timely motion for reconsideration under Federal Rule of Civil Procedure 59. The appellee nevertheless argued that the motion did not delay the start of the appeal clock because it did not raise arguments normally found in a Rule 59(e) motion.
The Sixth Circuit rejected this argument. A Rule 59(e) motion need only “reasonably specify the grounds for the motion” to delay the start of the appeal clock. Only when the motion was “frivolous or wholly lacking in particularity” would it fail to do so.
Stover v. Amazon.com, LLC, 2022 WL 94608 (6th Cir. Jan. 10, 2022), available at the Sixth Circuit and Westlaw.
The Tenth Circuit Related Forward a Notice of Appeal
In Everhart v. New Mexico Children Youth & Family Services, the Tenth Circuit said that the resolution of all claims saved a notice of appeal filed after an interlocutory order.
The plaintiffs in Everhart sued two defendants. The district court eventually granted summary judgment for one—the New Mexico Children Youth and Family Services. The plaintiffs then filed a notice of appeal. At the time of the notice, the plaintiffs had settled their claims against the other defendant. But the district court had not yet entered a final judgment resolving all of the plaintiffs’ claims. When it did so, the plaintiffs did not file a new notice of appeal.
The Tenth Circuit said that the premature notice was effective to appeal the summary-judgment decision. Like most circuits, the Tenth Circuit holds that the subsequent entry of a final judgment can save a notice of appeal filed after the resolution of only some claims. An appellant thus does not need to file a new notice of appeal (or amend the original)—the premature notice relates forward to the final judgment. The premature notice of appeal in Everhart thus related forward to the final judgment, and the Tenth Circuit had jurisdiction.
Everhart v. New Mexico Children Youth & Family Services, 2022 WL 110835 (10th Cir. Jan. 12, 2022), available at the Tenth Circuit and Westlaw.
The Second Circuit Applied Its Rule That the Deadline for Cross-Appeals Is Not Jurisdictional
In RLI Insurance Co. v. AST Engineering Corp., the Second Circuit excused the late filing of a cross-appeal. Federal Rule of Appellate Procedure 4(a)(3) requires that a cross-appeal be filed within 14 days of the initial appeal or within 30 days of the judgment, whichever is later. The cross-appellant in RLI Insurance filed its notice of appeal 30 days after the initial notice of appeal (which was more than 30 days after the judgment). It was therefore untimely. But the Second Circuit holds that the deadline for cross-appeals is not jurisdictional. It’s instead a claims-processing rule that can be forfeited. And the appellant in RLI Insurance had forfeited any objection to the timeliness of the cross appeal.
Note, not everyone agrees with the Second Circuit—some courts hold that the cross-appeal deadline is jurisdictional.
RLI Insurance Co. v. AST Engineering Corp., 2022 WL 107599 (2d Cir. Jan. 12, 2022), available at CourtListener and Westlaw.
The Fifth Circuit Dismissed a Qualified-Immunity Appeal Insofar as It Challenged the Availability of Punitive Damages
In Parker v. Blackwell, the Fifth Circuit refused to address the availability of punitive damages when hearing a qualified-immunity appeal. The availability of punitive damages, the court explained, “is not part of the qualified immunity analysis.” The court therefore lacked “jurisdiction to consider this question in this interlocutory appeal.”
Parker v. Blackwell, 2022 WL 123356 (5th Cir. Jan. 13, 2022), available at the Fifth Circuit and Westlaw.