The Month in Federal Appellate Jurisdiction: March 2023

The highlight from last month is probably the Second Circuit’s conclusion that it did not need to address its own jurisdiction when the district court lacked subject-matter jurisdiction. The decision was an immense, erroneous, and very likely unintentional expansion of federal appellate jurisdiction.

There was also a fascinating D.C. Circuit decision on what it means to be a “party” when appealing discovery orders directed at others. And the Second Circuit addressed both the appealability of § 1447(e) remands and whether appellate courts could look behind the purported reasons for a remand to the actual reasons.

Plus appeals from motions to dismiss that sought only arbitration, another cert petition on appealing church-autonomy defenses, anti-SLAPP appeals, the jurisdictionality of § 3742, the scope of Rule 23(f) appeals, and much more.

• Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction
• Third Parties & “Party” Status for Discovery Appeals
• Appealing § 1447(e) Remands, Genuine & Otherwise
• Appealing Motions to Dismiss & Compel Arbitration
• Supreme Court Developments
• A Call for Reconsidering Anti-SLAPP Appeals
• The Jurisdictionality of 18 U.S.C. § 3742
• The Ninth Circuit on the Scope of Rule 23(f) Appeals
• The Sixth Circuit Heard an Appeal From a Nominally Administrative Closure
• The Fifth Circuit Split Over Jurisdiction in a Qualified-Immunity Appeal
• The Eleventh Circuit on Pendent Appellate Jurisdiction Over State Claims in Qualified-Immunity Appeals
• The Second Circuit on Designating Appellants & Sanctions Orders

Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction

In Solomon v. St. Joseph Hospital, the Second Circuit skipped over appellate-jurisdiction issues to address the district court’s subject-matter jurisdiction. On its face, the opinion suggests that litigants can take interlocutory appeals to challenge federal subject-matter jurisdiction. This would be a massive—and likely inadvertent—expansion of interlocutory appeals.

For more on Solomon, see my post Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction.

Solomon v. St. Joseph Hospital, 2023 WL 2376207 (2d Cir. Mar. 7, 2023), available at CourtListener and Westlaw

Third Parties & “Party” Status for Discovery Appeals

In Broidy Capital Management LLC v. Muzin, the D.C. Circuit dismissed a non-party’s appeal that challenged a discovery order directed to a party. The court explained that only those with some sort of party status—whether an original party, an intervenor, or some other type of “party” for purposes of appeal—may appeal. Because the would-be appellant in Broidy Capital had never obtained party status, it could not appeal to challenge any of the district court’s orders. The D.C. Circuit remanded the case to give the non-party the opportunity to obtain the necessary status.

For more on Broidy—including a potential issue with appellate jurisdiction over Perlman appeals—see my post Third Parties & “Party” Status for Discovery Appeals.

Broidy Capital Management LLC v. Muzin, 2023 WL 2439809 (D.C. Cir. Mar. 10, 2023), available at the D.C. Circuit and Westlaw

Appealing § 1447(e) Remands, Genuine & Otherwise

In LeChase Construction Services, LLC v. Argonaut Insurance Co., the Second Circuit held that 28 U.S.C. § 1447(d)’s bar on remand appeals applied to remands under § 1447(e). But the court also held that it could review a remand that, while purportedly under § 1447(e), was actually based on “a patently nonjurisdictional ground, such as prudential considerations.” (Cleaned up.) So the Second Circuit reviewed a remand that—though nominally done under § 1447(e)—was really an exercise of Colorado River abstention.

For more on LeChase, see my post Appealing § 1447(e) Remands, Genuine & Otherwise.

LeChase Construction Services, LLC v. Argonaut Insurance Co., 2023 WL 2604253 (2d Cir. Mar. 23, 2023), available at CourtListener and Westlaw

Appealing Motions to Dismiss & Compel Arbitration

In Fraga v. Premium Retail Services, Inc., the First Circuit reviewed what was nominally the denial of a motion to dismiss, as that motion effectively sought to compel arbitration.

For more on Fraga, see my post Appealing Motions to Dismiss & Compel Arbitration.

Fraga v. Premium Retail Services, Inc., 2023 WL 2342039 (1st Cir. Mar. 3, 2023), available at the First Circuit and Westlaw

Supreme Court Developments

Another Cert Petition on Appealing Church-Autonomy Defenses

Another cert petition has been filed that asks if denials of church-autonomy defenses are immediately appealable. (I wrote about one of these in last month’s roundup.) This one comes out of the Second Circuit, which held that they’re not. That court also denied rehearing en banc in the case last month.

The case is Synod of Bishops of the Russian Orthodox Church Outside of Russia v. Belya. The response is due May 1, 2023.

Petition for a Writ of Certiorari, Synod of Bishops of the Russian Orthodox Church Outside of Russia v. Belya, No. 22-824 (Feb. 7, 2023), available at the Supreme Court and Westlaw.

A New Cert Petition on the Scope of Immigration Appeals

A new cert petition (no PDF publicly available) asks if the courts of appeals can review agency determinations underlying a removal (read: deportation) order, including determinations made in earlier removal proceedings. You can read about the Ninth Circuit’s decision in this case—which specifically addressed jurisdiction to review the termination of related removal proceedings in a appeal from a reinstated order of removal—in a prior roundup.

The case is Lopez v. Garland. The response is due April 12, 2023.

Petition for a Writ of Certiorari, Lopez v. Garland, No. 22-871 (Mar. 7, 2023), available at Westlaw.

A Call for Reconsidering Anti-SLAPP Appeals

Concurring in Salveson v. Kessler, Judge Bress again argued that the Ninth Circuit should reconsider its caselaw permitting immediate appeals from denied anti-SLAPP motions.

Salveson v. Kessler, 2023 WL 2674370 (9th Cir. Mar. 29, 2023), available at the Ninth Circuit and Westlaw

The Jurisdictionality of 18 U.S.C. § 3742

In United States v. Gonzalez, a panel of the Fifth Circuit suggested that the en banc court reconsider the jurisdictional nature of 18 U.S.C § 3742. That statute controls the relief available in criminal appeals. The Fifth Circuit has long treated that statute as a limit on its appellate jurisdiction. The Gonzalez panel questioned that conclusion. It also pointed to the Sixth Circuit’s recent reconsideration of this issue. The panel determined that “in an appropriate case, [the en banc Fifth Circuit] should follow the Sixth Circuit and revisit [its] precedents that treat § 3742(a) as jurisdictional.”

United States v. Gonzalez, 2023 WL 2580778 (5th Cir. Mar. 21, 2023), available at the Fifth Circuit and Westlaw

The Ninth Circuit on the Scope of Rule 23(f) Appeals

In Van v. LLR, Inc., the Ninth Circuit reviewed the availability of a particular defense as part of a Rule 23(f) class-certification appeal.

The district court initially held that a particular defense—the “voluntary-payment doctrine”—was not available under the relevant law. The court later certified the case as a class action. The defendant then successfully petitioned for immediate appellate review of the class-certification decision via Federal Rule of Civil Procedure 23(f). In that appeal, the defendant sought review the the district court’s rejection of the voluntary-payment doctrine.

The Ninth Circuit determined that it had jurisdiction to review the availability of the defense. And it could do so without exercising pendent appellate jurisdiction. The court explained that the scope of a Rule 23(f) appeal includes all issues that are part of the class-certification decision. And the availability of this defense affected the propriety of the class, as the it could affect the predominance inquiry. That the district court had addressed the the availability of the defense separately did not prohibit review.

Van v. LLR, Inc., 2023 WL 2469909 (9th Cir. Mar. 13, 2023), available at the Ninth Circuit and Westlaw

The Sixth Circuit Heard an Appeal From a Nominally Administrative Closure

In Rodriguez v. Hirshberg Acceptance Corporation, the Sixth Circuit heard an appeal from the district court’s refusal to reopen an administratively closed case.

The district court had administratively closed the case pending the Sixth Circuit’s decision in VanderKodde v. Mary Jane M. Elliott, P.C. After VanderKodde was decided, the plaintiff asked the district court to reopen her case. But the district court denied that request. When closing the case, the district court had required that any request to reopen come within 14 days of the decision in VanderKodde. The plaintiff’s request came outside those 14 days. And the district court found no excuse for the belated request.

The Sixth Circuit held that it had jurisdiction over the plaintiff’s subsequent appeal. Granted, administrative closures are not normally final, appealable decisions. But the plaintiff’s appeal was from an order refusing to reopen the case, not the closure itself. And the refusal to reopen the case indicated that the district court was finished with it. That’s a final decision.

The Sixth Circuit rejected the defendant’s argument that the administrative closure became a final decision once the 14-day deadline for seeking reopening had passed. The district court’s closure order never mentioned dismissal, such as by saying that the action would be dismissed after those 14 days. So the action was not over—and the decision not final—until the district court refused to reopen the action.

Thanks to Michael Solimine for sending this case my way.

Rodriguez v. Hirshberg Acceptance Corporation, 2023 WL 2486074 (6th Cir. Mar. 14, 2023), available at the Sixth Circuit and Westlaw

The Fifth Circuit Split Over Jurisdiction in a Qualified-Immunity Appeal

In Ducksworth v. Landrum, a majority of the Fifth Circuit held that it lacked jurisdiction to review the denial of qualified immunity because the defendants based their arguments on facts other than those that the district court had taken as true in denying immunity. Judge Oldham concurred in part, thinking that that Johnson v. Jones’s bar on qualified-immunity appeals applied only when the district court denied immunity “based solely on ‘evidence sufficiency.’”

Ducksworth v. Landrum, 2023 WL 2443836 (5th Cir. Mar. 10, 2023), available at the Fifth Circuit and Westlaw

The Eleventh Circuit on Pendent Appellate Jurisdiction Over State Claims in Qualified-Immunity Appeals

In Kirby v. Sheriff of City of Jacksonville, the Eleventh Circuit extended pendent appellate jurisdiction over a state law battery claim in an appeal from the denial of qualified immunity. The court said that the federal and state claims were “inextricably intertwined” because they involved the same facts and law:

[I]f the Complaint plausibly states a claim of excessive force against Appellant, it necessarily plausibly states a claim of common law battery under Florida law.

Given the identity of the issues, the court chose to exercise pendent appellate jurisdiction over the district court’s refusal to dismiss that claim.

Kirby v. Sheriff of City of Jacksonville, 2023 WL 2624376 (11th Cir. Mar. 24, 2023), available at the Eleventh Circuit and Westlaw

The Second Circuit on Designating Appellants & Sanctions Orders

Finally, in Offor v. Mercy Medical Center, the Second Circuit held that an attorney could appeal from a sanction order despite not being named in the notice of appeal because the sanctions were against only the attorney. Normally an attorney appealing from a sanction must be named in the notice of appeal. But when a notice designates a sanctions order imposed against only the attorney, the attorney’s intent to appeal is obvious.

Offor v. Mercy Medical Center, 2023 WL 2579040 (2d Cir. Mar. 21, 2023), available at CourtListener and Westlaw