Appealing to Invoke a Non-Party’s Immunity?
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
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