Appeals involving the review of state court orders in removed cases, voluntary dismissals of state law claims, corrective class-settlement notices, remands from the Veterans Court, and more. Plus a new cert petition on preserving issues via summary-judgment denials.
September 14, 2022
Lots to talk about and not a lot of time to talk. Let’s get to it.
- The Eighth Circuit on Reviewing State Court Orders After Removal
- Appeals After the Voluntary, Without-Prejudice Dismissal of State Law Claims
- The Ninth Circuit Dismissed an Appeal Involving Invalidated Class-Action Opt Outs & a Corrective Class-Settlement Notice
- The Federal Circuit on Reviewing Remand Orders From the Veterans Court
- New Cert Petition on Preserving Issues via Summary-Judgment Denials
- The Seventh Circuit on Appeal Waivers
- Appealing State Law Defenses & Immunities
- Quick Notes
The Eighth Circuit on Reviewing State Court Orders After Removal
In Wills v. Encompass Insurance Co., the Eighth Circuit explained that it could review interlocutory state court decisions in a removed case once the case reached a final judgment.
Simplifying only slightly, Wills started as an insurance-coverage dispute in Arkansas state court. At summary judgment, the state court ruled for the insured on one of his claims—a breach-of-contract claim—and awarded $500,000 in damages. Another claim—for bad faith in denying insurance coverage—remained pending. The plaintiff later joined another insurance company as a defendant. And that insurance company removed the action to federal court. The original insurance company asked the federal district court to vacate the state court’s summary-judgment decision on the breach-of-contract claim. The district court declined; it thought that the Rooker–Feldman doctrine barred any review of the state court decision. The district court eventually resolved all outstanding claims. The original insurer then appealed.
The Eighth Circuit noted a possible jurisdictional issue. The insurance company challenged decisions only of the Arkansas state court; the federal district court’s decisions were not mentioned. The Eighth Circuit concluded, however, that it could review the Arkansas state court’s decisions. As a general rule, all interlocutory orders merge into the final judgment in an action. That rule holds for orders that a state court entered before removal. So a court of appeals can review state court decisions in a final-judgment appeal, regardless of “whether or not the district court elects to reexamine them after removal.”
Wills v. Encompass Insurance Co., 2022 WL 4075767 (8th Cir. Sep. 6, 2022), available at the Eighth Circuit and Westlaw
Appeals After the Voluntary, Without-Prejudice Dismissal of State Law Claims
In Nation v. Piedmont Independent School District, the Tenth Circuit held that it had jurisdiction despite the plaintiffs’ voluntarily dismissing their unresolved state law claims without prejudice.
When a district court resolves some of the claims in an action, most courts say that a subsequent voluntary, without-prejudice dismissal of all remaining claims does not produce a final decision. The concern is that the plaintiff might refile the voluntarily dismissed claims. But if the voluntarily dismissed claims arise under state law—and there is no basis for jurisdiction over those claims except as supplemental to the federal claims—there is no risk of refiling. The Tenth Circuit has accordingly recognized an exception to the general rule when the district court resolves all federal claims, leaving only state law claims to be voluntarily dismissed.
That was the case in Nation. The plaintiffs brought claims under 42 U.S.C. § 1983 and various state laws. The district court ruled for the defendants on the § 1983 claim. The parties then agreed to dismiss the state claims without prejudice, and the plaintiffs appealed. Federal jurisdiction over those state law claims was only supplemental; the parties were not diverse. So dismissal of the § 1983 claim disposed of the only hook for federal jurisdiction over the state law claims. Because the plaintiffs could not refile those claims in federal court, their voluntary dismissal resulted in a final decision.
Nation v. Piedmont Independent School District, 2022 WL 4075595 (10th Cir. Sep. 6, 2022), available at the Tenth Circuit and Westlaw
The Ninth Circuit Dismissed an Appeal Involving Invalidated Class-Action Opt Outs & a Corrective Class-Settlement Notice
In Aguilar v. Walgreen Co., the Ninth Circuit held that it lacked jurisdiction to immediately review a district court’s orders concerning a class settlement.
After the district court had preliminarily approved the settlement in Aguilar, a law firm sent letters to class members urging them to opt out of the settlement. (The firm wanted the class members to instead join a mass action that the firm was pursuing.) The district court later determined that this letter was misleading, and the firm that sent it had a conflict of interest. The district court accordingly invalidated all opt outs from the letter and ordered a corrective notice be sent to all class members. The law firm then appealed.
The Ninth Circuit held that it lacked jurisdiction. The law firm invoked the collateral-order doctrine, which requires (among other things) that an order be effectively unreviewable in a final-judgment appeal. The Ninth Circuit saw no reason why review of the district court’s orders could not wait. Courts regularly review invalidated opt outs in final-judgment appeals. The court also rejected the firm’s mandamus petition, noting that the district court’s decision was not clearly erroneous.
Aguilar v. Walgreen Co., 2022 WL 4090305 (9th Cir. Sep. 7, 2022), available at the Ninth Circuit and Westlaw
The Federal Circuit on Reviewing Remand Orders From the Veterans Court
In Skaar v. McDonough, the Federal Circuit reviewed a remand order from the Court of Appeals for Veterans Claims.
The Federal Circuit noted that while its jurisdiction over appeals from the Veterans Court does not depend on finality, it normally declines to review non-final orders of that court. And a remand order is generally not final. But the Federal Circuit will review a remand order in some circumstances:
- There must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings, or, (c) if reversed by this court, would render the remand proceedings unnecessary;
- The resolution of the legal issues must adversely affect the party seeking review; and
- There must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.
(Cleaned up.)
The order in Skaar certified a class action. According to the Federal Circuit, that class-certification decision satisfied all three of these requirements. The class-certification order addressed the legal issue of the Veterans Court’s jurisdiction. The order adversely affected the Secretary of Veterans Affairs, as it required the Secretary to address relief for class members who had not filed claims for benefits. And an immediate appeal was necessary, as the Secretary could not appeal from any decision on remand.
Skaar v. McDonough, 2022 WL 4100240 (Fed. Cir. Sep. 8, 2022), available at the Federal Circuit and Westlaw
New Cert Petition on Preserving Issues via Summary-Judgment Denials
A new cert petition asks the Supreme Court if a denied motion for summary judgment is sufficient to preserve a purely legal issue for appeal. For background on this issue, see my post on a previous cert petition that raised this issue.
The case is Dupree v. Younger. The response is due October 11, 2022.
Petition for a Writ of Certiorari, Dupree v. Younger, No. 22-210 (Sep. 6, 2022), available at the Supreme Court of the United States and Westlaw
The Seventh Circuit on Appeal Waivers
In United States v. Watson, the Seventh Circuit explained its approach to criminal appeals that involve an appeal waiver:
[O]ur procedures for resolving cases with appeal waivers, at least if Anders applies, are as follows:
- We continue to discourage the government from moving to dismiss before the defendant has filed his brief. A motion filed before the opening brief will be construed as only a notice of intent to stand on the waiver.
- A notice of intent does not alter the briefing schedule or the obligations of defendant’s counsel. If counsel sees no way to proceed with an appeal, she should move to withdraw and file an Anders brief. The court will resolve the motion to withdraw consistent with Circuit Rule 51.
- If counsel instead files a brief raising arguments on the merits, the government may then move to dismiss the appeal based on the waiver (without any accompanying merits briefing) and should do so well before its own brief deadline. In the hopefully rare event that the appellant’s brief ignores the waiver or offers only flimsy arguments for escaping it, a motions panel will dismiss the appeal after considering any response.
- The government is not obligated to file either a notice of intent or a motion to dismiss to preserve its rights under the agreement. If it does not take either action, or if a motions panel denies its motion to dismiss, it remains free to argue for enforcement of the waiver in its own brief.
United States v. Watson, 2022 WL 4092825 (7th Cir. Sep. 7, 2022), available at the Seventh Circuit and Westlaw
Appealing State Law Defenses & Immunities
A few weeks ago, the Ninth Circuit asked the Arizona Supreme Court whether a particular defense under Arizona law provided an immunity from suit. If it did, a district court order rejecting that defense would have been an immediately appealable collateral order. The Arizona Supreme Court responded that the defense was not an immunity. The Ninth Circuit accordingly dismissed the appeal in Adame v. City of Surprise.
Adame v. City of Surprise, 2022 WL 4113669 (9th Cir. Sep. 9, 2022), available at the Ninth Circuit and Westlaw
Quick Notes
In In re Maxus Energy Corporation, the Third Circuit explained that its jurisdiction in certified bankruptcy appeals extends to the entire certified order—not just the issues that the bankruptcy court thought warranted an immediate appeal.
In re Maxus Energy Corporation, 2022 WL 4113656 (3d Cir. Sep. 9, 2022), available at the Third Circuit and Westlaw
In Amawi v. Paxton, the Fifth Circuit reviewed an attorneys-fees decision even though the amount of fees had not been calculated. Normally a decision on liability that does not set the amount of relief is not a final order. An exception exists when calculating the award would be a technical or ministerial act—a straightforward determination that will not produce another appeal. And that exception applied in Amawi. The district court had decided on an exact formula for determining the fees. The calculation itself was “purely ministerial.”
Amawi v. Paxton, 2022 WL 4093123 (5th Cir. Sep. 7, 2022), available at the Fifth Circuit and Westlaw
And in Paugh v. Uintah County, the Tenth Circuit declined to extend pendent appellate jurisdiction over a municipal defendant’s attempt tag along in a qualified-immunity appeal. The Tenth Circuit normally allows this municipal piggybacking when it determines that the individual defendants did not violate the constitution. But in Paugh, the Tenth Circuit affirmed the denial of immunity, concluding that the plaintiff had enough evidence to show a violation of clearly established law. The court accordingly lacked jurisdiction over the municipal appeal.
Paugh v. Uintah County, 2022 WL 4093078 (10th Cir. Sep. 7, 2022), available at the Tenth Circuit and Westlaw