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In City of Martinsville v. Express Scripts, Inc., a divided Fourth Circuit held that a court must stay proceedings—and not process a remand order—if the defendant appeals before the district court can send the remand order to the state court. The majority thought that the rule of Griggs v. Provident Consumer Discount Co.—particularly as the Supreme Court recently explained that rule in Coinbase, Inc. v. Bielski—required the district court to refrain from acting once the appeal was filed. Judge Wynn dissented, arguing that the majority was reading too much into Coinbase.
Perlman Appeals in the Grand Jury Context
In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally allows privilege claimants to appeal from discovery orders directed at third parties. And the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter did not affect Perlman appeals in the context of grand jury proceedings.
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record at 0-5 on this issue.
Fleming provides a really nice overview of why the Bivens question should not be immediately appealable. The decision also offers some great discussion of the collateral-order doctrine’s third requirement—i.e., that an order be effectively unreviewable in an appeal after a final judgment. The Eleventh Circuit explained that this implicates both importance and urgency. In the court’s words, “[i]nterlocutory appeals are not for issues that are merely important; they are for issues that are important, now.”
Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) that denials of qualified immunity should not be immediately appealable via the collateral-order doctrine. And the Fifth Circuit allowed a municipal defendant to appeal a denial of immunity despite the district court also ordering arbitration.
On top of that, the Supreme Court granted cert to address whether a second notice of appeal is required after a district court reopens the time to appeal. And a new cert petition asks if the denial of derivative sovereign immunity is immediately appealable.
Plus abstention appeals in bankruptcy, requiring would-be intervenors to appeal, the need to attach judgments in bankruptcy appeals, and much more.
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel.
Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after a court treats the first notice as a motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).
I’m thrilled to announce the creation of Final Decisions PLLC, an appellate boutique and consultancy focused on appellate jurisdiction. Through it, I hope to partner with lawyers facing complex appellate-jurisdiction issues.
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.
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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