Cross-appeals under § 1292(b), the appealability of holdback orders in an MDL, a fact-based qualified-immunity appeal, and the finality of an administrative closure.
November 9, 2022
Last week, the Second Circuit explained its discretion to hear a cross-appeal in an appeal under 28 U.S.C. § 1292(b). The Ninth Circuit dismissed as non-final an appeal regarding money an MDL defendant must set aside for a common-benefit fund. The Fifth Circuit dismissed a qualified-immunity appeal that challenged the factual basis for the immunity denial, as a video did not blatantly contradict the plaintiff’s version of events. And the Fifth Circuit said that the administrative closure of a case was not final.
- The Second Circuit on Cross-Appeals in § 1292(b) Appeals
- The Ninth Circuit Dismissed an Appeal from an MDL Holdback Order
- The Fifth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal that Relied on Video Evidence
- The Fifth Circuit Dismissed an Appeal After an Administrative Closure
The Second Circuit on Cross-Appeals in § 1292(b) Appeals
In Sportsinsurance.com, Inc. v. Hanover Insurance Co., the Second Circuit exercised its discretion to review a cross-appeal as part of a § 1292(b) appeal.
The case involved an insurance dispute, with the plaintiff asserting two relevant claims against its insurance company: breach of contract and breach of the implied covenant of good faith and fair dealing. The district court dismissed the breach-of-contract claim but not the implied-covenant claim. The district court then certified its refusal to dismiss the implied-covenant claim for an immediate appeal under 28 U.S.C. § 1292(b). In the insurance company’s appeal, the plaintiff asked the court of appeals to review the dismissal of the breach-of-contract claim. The insurance company responded that the issue was not before the court of appeals, as the plaintiff had not obtained leave to appeal.
The Second Circuit first explained that it had jurisdiction to review the entire district court order. Under Yamaha Motor Corp., U.S.A. v. Calhoun, a § 1292(b) appeal encompasses the entire certified order, not just the issues that the district court thought warranted an immediate appeal. So the Second Circuit could, as a matter of discretion, review the dismissal of the breach-of-contract claim. And the court ultimately decided to exercise that discretion. Section 1292(b) appeals, the Second Circuit explained, can “warrant a more relaxed approach to cross-appeal requirements.” The important point was that “all parties have had adequate notice of all issues to be argued and decided, and that the record affords a secure basis for decision.” In Sportsinsurance, the insurance company had adequate notice of the issues, and the record was complete.
Sportsinsurance.com, Inc. v. Hanover Insurance Co., 2022 WL 16706941 (2d Cir. Nov. 4, 2022), available at CourtListener and Westlaw
The Ninth Circuit Dismissed an Appeal from an MDL Holdback Order
In In re Roundup Products Liability Litigation, the Ninth Circuit held that it lacked jurisdiction to review an order concerning a holdback percentage for a common-benefit fund.
Simplifying a bit, the appeal stemmed from the Roundup multidistrict litigation. The district court ordered the defendant to to set aside 8% of of MDL plaintiffs’ recovery as a common benefit fund. Lead counsel for the plaintiffs in the MDL then appealed, arguing that the district court should have also required that funds be set aside from non-MDL plaintiffs’ recovery.
The Ninth Circuit dismissed the appeal for a lack of jurisdiction. It first explained that the district court’s holdback decision was not a traditional final decision under 28 U.S.C. § 1291. The order did not resolve the merits of the litigation or even ultimately determine the issues concerning common benefit fees.
Nor was the order appealable via the collateral-order doctrine. That doctrine deems certain kinds of orders to be 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. Although the holdback order was separate from the merits, it was not effectively unreviewable absent an immediate appeal. After the district court resolves all fee issues, plaintiffs’ counsel will be able to appeal to raise any issues with the fees decision. The Ninth Circuit added that “the denial of common benefit fees from certain sources of funds does not present a ‘serious’ or ‘important’ question implicating rights that would be destroyed absent immediate review.”
In re Roundup Products Liability Litigation, 2022 WL 16646693 (9th Cir. Nov. 3, 2022), available at the Ninth Circuit and Westlaw
The Fifth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal that Relied on Video Evidence
In Byrd v. Cornelius, the Fifth Circuit dismissed an appeal from the denial of qualified immunity, as video evidence did not conclusively establish what happened. The defendants invoked Scott v. Harris’s blatant-contradiction exception to the normal prohibition on reviewing the factual basis for an immunity denial. But the video on which they relied did “not conclusively resolve the factual disputes identified by the district court.”
Byrd v. Cornelius, 2022 WL 16549163 (5th Cir. Oct. 31, 2022), available at the Fifth Circuit and Westlaw
The Fifth Circuit Dismissed an Appeal After an Administrative Closure
In Spring Branch Independent School District v. O. W. ex rel Hannah W., the Fifth Circuit held that there was no final, appealable decision after the district court administratively closed a case. The district court had remanded the parties’ dispute to an administrative agency to determine damages. The district court then ordered the case administratively closed, noting that either party could move to reopen the case after the administrative agency’s decision. The plaintiff then appealed. But the Fifth Circuit said that administrative closures do not result in a final judgment. The Fifth Circuit accordingly dismissed the appeal.
One note: this probably could have been decided under the administrative-remand rule.
Spring Branch Independent School District v. O. W. ex rel Hannah W., 2022 WL 16707979 (5th Cir. Nov. 4, 2022), available at the Fifth Circuit and Westlaw