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Almost six years ago, I started the Final Decisions blog as a way to keep on top of developments in the world of appellate jurisdiction.…
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In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under Kentucky law).
There is nothing all that remarkable in this outcome (though it’s always refreshing to see an appellate court decline to expand the scope or availability of qualified-immunity appeals). What’s interesting about New Albany is the court’s discussion of the connection between qualified immunity and an action’s merits.
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction.
But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right. Judge Pillard concurred in the D.C. Circuit’s refusal to reconsider the panel decision in Lewis v. Becerra. And Judge Pillard used that opinion to address the panel’s discussion of standing.
In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case. The majority thought that no immediate guidance was necessary on this damages issue, which—if the defendants prevailed at the pending trial—would never arise. And an immediate appeal would delay—not accelerate—the resolution of the action. Judge Higginson dissented, contending that the majority had read § 1292(b) too strictly and immediate appellate review of this damages issue was warranted.
Like many courts, the Fifth Circuit treated § 1292(b)’s criteria—a substantial ground for difference of opinion, a controlling question of law, and material advancement of the litigation—as prerequisites to an appeal. The order in Silverthorne Seismic failed two of those requirements and was thus ineligible for certification.
But I doubt that courts should treat § 1292(b) as imposing eligibility requirements that must be satisfied in every case. The criteria should instead serve as guidelines for the exercise of discretion. That is, § 1292(b)’s criteria should not determine whether a court can hear an interlocutory appeal. They should instead guide the decision of whether that court should hear the appeal.
Last month saw a pair of decisions on when post-judgment motions reset the appeal clock for interlocutory appeals. The Ninth Circuit addressed its jurisdiction over a government appeal when the government invites the district court to dismiss an indictment. The Ninth Circuit also addressed jurisdiction over cross-appeals under the administrative-remand rule. Plus an improper qualified-immunity appeal and more doubts about anti-SLAPP appeals.
In United States v. Wilson, the Ninth Circuit permitted the government to appeal a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require finality. And the district court’s involvement in the dismissal assuaged any concerns about manufacturing an appeal.
I think the court was right about appellate jurisdiction. After all, the district court had dismissed the indictment, which is an appealable decision under § 3731. Notably, this was fairly different from how courts treat similar efforts to manufacture an appeal in the civil context.
But I still think the appeal was improper. In my view, the government waived any challenge to the judgment by consenting to a dismissal before the case had been effectively resolved.
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil Procedure 59(e), despite the motion’s relying on a local rule rather than Rule 59(e). And that Rule 59(e) motion reset the appeal clock. The defendants could thus appeal the denial of immunity months after that denial. This conclusion let the Sixth Circuit avoid addressing whether a refusal to reconsider the denial of immunity is itself immediately appealable.
In Kaweah Delta Health Care District v. Becerra, the Ninth Circuit held that a cross-appeal was proper when the government could appeal from an administrative remand. The court explained that when the administrative-remand rule makes a decision final, it is final for everyone.
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal Rule of Civil Procedure 59(e) and instead relies on a different rule.
This all meant that the appeal in Gelin was not late. In fact, it was too early. The district court had not resolved all issues raised in the reconsideration motion. The Fourth Circuit accordingly held the appeal in abeyance while the district court fully disposed of the reconsideration motion.
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
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