Two rare opinions explaining decisions on discretionary appeals under § 1292(b) and Rule 23(f), appeals from post-judgment attachment orders, and more.
January 26, 2022
Last week saw two rare opinions on the discretionary appeals. The Ninth Circuit refused to hear a certified appeal under 28 U.S.C. § 1292(b) because the certified order did not include a question of law. And the Third Circuit accepted a Federal Rule of Civil Procedure 23(f) petition to appeal a class-certification decision, partly due to a perception that the district court judge was pressuring the defendants to settle. In another case, the Third Circuit explained its jurisdiction over post-judgment attachment orders. In the course of doing so, the court explored the precedential effect of old cases involving writs of error. Plus an appeal after a voluntary dismissal without prejudice in the Second Circuit, and an Eleventh Circuit decision acknowledging the changes wrought by recent amendments to Federal Rule of Appellate Procedure 3(c).
- The Ninth Circuit on the Scope of Certified Appeals Under 28 U.S.C. § 1292(b)
- The Third Circuit Granted a Rule 23(f) Class-Certification Appeal
- The Third Circuit on Appealing Post-Judgment Attachment Orders
- Quick Notes
The Ninth Circuit on the Scope of Certified Appeals Under 28 U.S.C. § 1292(b)
In ICTSI Oregon, Inc. v. International Longshore & Warehouse Union, the Ninth Circuit refused to accept an appeal that the district court had certified under 28 U.S.C. § 1292(b).
ICTSI Oregon arose out of a labor dispute, with a secondary employer seeking damages from a union for interference with the employer’s operations. Before trial, the district court issued an order on the burden of proof. It assigned the burden on some elements to the employer. But it held that the union bore the burden of proving a few issues related to damages. After a jury returned a verdict for the employer, the district court ordered a new trial. The district court also certified this new-trial order for an immediate appeal under § 1292(b). According to the district court, two questions warranted a certified appeal: had the employer lost its status as a “secondary employer” by participating in a labor dispute, and had the district court appropriately apportioned the burden of proof?
The Ninth Circuit ultimately refused to accept the certified appeal. The certified post-judgment order addressed only whether the employer had lost its status as a secondary employer. That was a question of fact. And appeals under § 1292(b) must involve a controlling question of law. So the certified post-judgment order could not itself be certified for an immediate appeal under § 1292(b).
The Ninth Circuit also held that it could not reach the burden-of-proof issue. The district court had not addressed that issue in the order that it certified. Granted, the court could go beyond the four corners of a certified order to address issues that are “material” to the certified order. But it could do so only if the certified order was itself appealable via § 1292(b). And the court had already held that the district court’s post-judgment order did not involve a question of law and thus could not be certified under § 1292(b).
ICTSI Oregon, Inc. v. International Longshore & Warehouse Union, 2022 WL 152079 (9th Cir. Jan. 18, 2022), available at the Ninth Circuit and Westlaw.
The Third Circuit Granted a Rule 23(f) Class-Certification Appeal
In Laudato v. EQT Corp., the Third Circuit granted a Federal Rule of Civil Procedure 23(f) petition to review a district court order certifying a class action.
Explained decisions on Rule 23(f) petitions are rare, and Laudato dealt with two interesting aspects of Rule 23(f) appeals. The Third Circuit first explained that a Rule 23(f) appeal was appropriate even though the district court had not yet defined the class: “a class-action-certification order that leaves unresolved a crucial element—the class definition—is no less likely to exert substantial pressure on a defendant to settle than a standard class-action-certification order.” Second, the Third Circuit noted the apparent pressure that the district court was putting on the defendant to settle. That pressure—coupled with the “opportunity to facilitate development of the law on class certification”—warranted granting the petition to appeal.
Also of interest, the panel retained jurisdiction over the appeal and notified the parties that it was considering summary action. This was a bit odd. Normally a different panel would review the merits of the class-certification decision.
Laudato v. EQT Corp., 2022 WL 176230 (3d Cir. Jan. 20, 2022), available at the Third Circuit and Westlaw.
The Third Circuit on Appealing Post-Judgment Attachment Orders
In Crystallex International Corp. v. Bolivarian Republic of Venezuela, the Third Circuit dismissed an appeal from the refusal to quash a post-judgment attachment.
Crystallex International arose from efforts to collect on a $1.4 billion arbitration award against Venezuela. Simplifying a fair bit—you can read more about the dispute in a previous weekly roundup that discussed a prior appeal—the plaintiff obtained an attachment order over shares of CITGO Petroleum Corp., which Venezuela owned through a few intermediaries. But before those shares could be sold, the United States issued economic sanctions against Venezuela, which prohibited any sale of the shares. The district court nevertheless refused to quash the attachment. It also appointed a special master to plan for the sale of the shares. The thought was that once the limit on dealing in the shares was lifted, the district court could swiftly proceed with the sale.
Venezuela appealed. But the Third Circuit held that it lacked jurisdiction. Attachment orders are final when “all that remains is for a non-judicial officer to take and dispose of the defendant’s property.” And that wasn’t the case in Crystallex International. There were still pending objections to the sale procedures that the district court had yet to resolve. Once the district court was done administering the sale, its decisions would be final and appealable.
The court also discussed at some length the precedential effect of cases involving writs of error. The plaintiff had argued that refusals to quash attachment orders are never appealable. In doing so, it relied on a pair of nineteenth-century Supreme Court cases involving writs of error. The Third Circuit explained that writs of error were different from appeals, as writs of error normally could not be used to review discretionary determinations (such as orders on motions to quash execution). But Congress got rid of the writ of error in 1924. Review now comes via appeals. So the jurisdictional limits that existed for writs of error no longer applied.
Crystallex International Corp. v. Bolivarian Republic of Venezuela, 2022 WL 152078 (3d Cir. Jan. 18, 2022), available at the Third Circuit and Westlaw.
Quick Notes
In Alix v. McKinsey & Co., the Second Circuit held that it had jurisdiction over an appeal after the plaintiff disclaimed any right to refile claims that the he had voluntarily dismissed without prejudice.
Alix v. McKinsey & Co., 2022 WL 163800 (2d Cir. Jan. 19, 2022), available at the Second Circuit and Westlaw.
And in United States v. Morgan, the Eleventh Circuit noted that recent amendments to Federal Rule of Appellate Procedure 3(c) abrogated its caselaw limiting the scope of an appeal to the orders designated in a notice of appeal.
United States v. Morgan, 2022 WL 152513 (11th Cir. Jan. 18, 2022), available at the Eleventh Circuit and Westlaw.