Appellate Decisions

Appealing to Invoke a Non-Party’s Immunity?

The Fourth Circuit dismissed an appeal in which defendants argued that a state agency—which could invoke sovereign immunity—should be joined under Rule 19.

August 10, 2024

By Bryan Lammon

In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.

The Sovereign-Immunity Issue in McEvoy

McEvoy was an environmental suit concerning the cleanup of abandoned oil and gas wells. The defendants, who were current and former owners of the wells, moved for judgment on the pleadings. They argued that the West Virginia Department of Environmental Protection was a party that must be joined under Federal Rule of Civil Procedure 19. They further argued that because sovereign immunity barred joining the Department, dismissal of the action warranted.

The district court denied the motion. It determined that the Department was not a party that needed to be joined. The district court could award the plaintiffs damages on their tort claims without implicating the Department’s interests.

No Rule 19/Sovereign-Immunity Appeal

The defendants then tried to appeal the denial of their motion. To justify the immediate appeal, they relied on the rule that denials of state sovereign immunity are immediately appealable.

The Fourth Circuit pointed out the obvious: no defendant had ever sought—and thus no defendant had ever been denied—sovereign immunity. The district court instead decided only whether the Department needed to be joined. In doing so, the district court did not rule on the Department’s immunity. Nor had the Department intervened to invoke immunity. So the rule permitting sovereign-immunity appeals did not apply.

The Fourth Circuit further explained that the order was not appealable via the collateral-order doctrine. That doctrine permits appeals from orders that (1) conclusively resolve an issue, (2) present an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. And the district court’s Rule 19 decision was neither separate from the merits nor unreviewable in a final-judgment appeal.

A Warning About Tacked-On Mandamus Requests

The Fourth Circuit ended the opinion by refusing to treat the appeal as a petition for mandamus. The defendants had “not even attempted to comply with the many procedural requirements for filing a petition for a writ of mandamus.” They had instead merely “tack[ed] this argument on to the end of their appellate brief.”

McEvoy v. Diversified Energy Co., 2024 WL 3642431 (4th Cir. Aug. 5, 2024), available at the Fourth Circuit and Westlaw

recent posts

No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.
Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)
The Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the appeal clock. The court added that Rule 4(a)(4) does not allow for equitable exceptions and addressed an order-designation issue, too.
Yet Another Split Rejection of Pure Bivens Appeals
The Ninth Circuit joined the Third and Tenth Circuits in rejecting pure Bivens appeals. But like those courts, the Ninth’s decision was split.

related posts

Immunities & the Rest of the Collateral-Order Doctrine
The Fourth Circuit suggested that a defense’s providing an immunity from litigation is enough for the collateral-order doctrine. But what about the doctrine’s other requirements, particularly separateness?
Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction
The Second Circuit assumed that it had jurisdiction over an interlocutory appeal and held that the district court lacked subject-matter jurisdiction.
Criminal Cases, Collateral Orders & Rights to Avoid Trial
Emphasizing the need for a statutory or constitutional right to avoid trial, the First Circuit held that criminal defendants cannot appeal from the denial of judicial immunity via the collateral-order doctrine.
Appellate Jurisdiction in the Fourth Circuit’s Emoluments Appeals
The Fourth Circuit took the extraordinary (and possibly improper) step of directing a district court—via a writ of mandamus—to certify a § 1292(b) appeal in an emoluments case.