The Week in Federal Appellate Jurisdiction: October 16–22, 2022

There was no roundup last week—for the first time since since I started the weekly roundup in July 2019, I didn’t see any decisions to talk about. But I’m back this week with an appeal from an OSHA warrant, formal defects in a Rule 54(b) partial judgment, post-judgment appeals involving the procedures for selling assets, and more.

• The Seventh Circuit Dismissed an Appeal that Challenged an OSHA Warrant
• The Fifth Circuit on Form and Substance With Rule 54(b) Partial Judgments
• The Eleventh Circuit on Post-Judgment Appeals Involving the Sale of Assets
• The Week’s Improper Qualified-Immunity Appeals

The Seventh Circuit Dismissed an Appeal that Challenged an OSHA Warrant

In In re Anthony Marano Company, the Seventh Circuit dismissed an appeal from the refusal to quash a warrant that a district court issued at the request of OSHA.

On the ex parte application of the Occupational Safety and Health Administration, the district court issued a warrant to inspect a fruit and vegetable wholesaler. But when an OSHA inspector attempted to enter the wholesaler’s premises, the wholesaler denied her entry and moved to quash the warrant. The district court denied that motion. The wholesaler then appealed.

The Seventh Circuit dismissed the appeal. The denial of the motion to quash did not end district court proceedings; OSHA had also sought contempt for the wholesaler’s refusal to abide by the warrant, which was still pending. The decision was also not final under United States v. Ryan. Ryan “simply restate[d] the general proposition that a denial of a motion to quash a grand jury subpoena is not immediately appealable.” To be sure, Ryan “acknowledge[d] the limited exception to that rule when property otherwise might be held indefinitely or surrendered to the Government without a determination of a party’s rights.” But that exception did not apply—the wholesaler could raise any issue with the warrant in any subsequent administrative proceedings. Finally, the case was not a self-contained action to enforce an administrative subpoena, which might support an appeal.

In re Anthony Marano Company, 2022 WL 10224696 (7th Cir. Oct. 18, 2022), available at the Seventh Circuit and Westlaw

The Fifth Circuit on Form and Substance With Rule 54(b) Partial Judgments

In D & J Investments of Cenla, L.L.C. v. Baker Hughes, the Fifth Circuit explained that a Rule 54(b) partial judgment was fine despite designating the wrong order.

The district court dismissed all claims against one defendant for improper joinder and refused to remand the action to state court. The order initially said that the dismissal was with prejudice. The district court later amended the order to dismiss the defendant without prejudice. And sometime after that, the district court entered a partial judgment on this dismissal under Federal Rule of Civil Procedure 54(b). But the partial judgment designated the initial, with-prejudice dismissal order, not the subsequent amended order.

On appeal, the plaintiffs contended that the Rule 54(b) partial judgment was erroneous. The Fifth Circuit disagreed. The district court “unmistakably” intended to enter a partial judgment on the amended dismissal. To hold otherwise would elevate “form over substance”—which the Fifth Circuit has “routinely reject[ed]” when reviewing the propriety of Rule 54(b) partial judgments.

D & J Investments of Cenla, L.L.C. v. Baker Hughes, 2022 WL 9862487 (5th Cir. Oct. 17, 2022), available at the Fifth Circuit and Westlaw

The Eleventh Circuit on Post-Judgment Appeals Involving the Sale of Assets

In Acheron Capital, Ltd. v. Mukamal, the Eleventh Circuit dismissed an appeal from an order concerning the procedures for the post-judgment sale of assets. The court had dismissed a similar appeal in this case last January. Once again, the district court had approved of certain procedures for the auction of assets held. Once again, someone with an interest in those assets appealed to challenge that order. And once again, the Eleventh Circuit explained that it lacked jurisdiction until after the sale occurs.

Acheron Capital, Ltd. v. Mukamal, 2022 WL 9729775 (11th Cir. Oct. 17, 2022), available at the Eleventh Circuit and Westlaw

The Week’s Improper Qualified-Immunity Appeals

Finally, two courts rejected attempts to challenge the factual basis for qualified-immunity denials.

Peck v. Montoya involved a fatal police shooting. According to the district court, a reasonable jury could conclude that the decedent was not moving towards a gun when the defendants shot him. The district court accordingly saw a genuine dispute as to the threat the decedent posed at the time of the shooting and denied qualified immunity. The defendants appealed. And in that appeal, they argued that the decedent was moving towards the gun. The Ninth Circuit explained that it could not review this issue in an immediate appeal from the denial of qualified immunity.

Welch v. Dempsey involved a claim of First Amendment retaliation. According to the district court, a reasonable jury could conclude that the the defendant police officer pepper sprayed the plaintiff because of the plaintiff’s speech. And if the jury so found, the officer would have violated clearly established law. The officer nevertheless appealed to argue that the use of force was not motivated by the plaintiff’s exercise of her rights. The Eighth Circuit explained that it lacked jurisdiction to address this argument.

Peck v. Montoya, 2022 WL 10225252 (9th Cir. Oct. 18, 2022), available at the Ninth Circuit and Westlaw

Welch v. Dempsey, 2022 WL 11532068 (8th Cir. Oct. 20, 2022), available at the Eighth Circuit and Westlaw