The Ninth Circuit pointed out that if the administrative-remand rule makes an order final, everyone—not just the government—can appeal.
December 12, 2024
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.
The Appeal & Cross Appeal in Kaweah Delta
Kaweah Delta Health Care involved a challenge to a Department of Health and Human Services policy concerning medicare reimbursement. The district court held that the policy exceeded the Department’s authority. But the court did not vacate the policy. The district court was concerned that doing so would be too disruptive. The court instead remanded the matter to the agency for further proceedings.
The Department appealed to the Ninth Circuit. The challengers to the policy then filed a cross appeal, challenging the district court’s refusal to vacate the policy.
An Administrative Remand that Was Final for Everyone
The Administrative-Remand Rule
Under the administrative-remand rule, orders remanding a matter to an administrative agency for further proceedings are normally not final. The remand leaves more to be done. And in many cases, immediate review of the remand would both disrupt those proceedings and result in piecemeal review. Delaying review has the benefit of consolidating all issues into a single appeal.
But the administrative-remand rule doesn’t always deem remands non-final. A remand can be final when it might deprive a party (often the government) from any chance at appellate review. This happens primarily when a district court holds that an agency applied the wrong legal standard and remands with instructions for that agency to apply a different legal standard. If, on remand, the agency applies that new legal standard and finds for the party who was challenging the agency’s actions, the government generally will not be able to appeal; agencies normally cannot appeal their own decisions. So the remand risks making the district court’s holding on the proper legal standard unreviewable by a court of appeals. Faced with this sort of situation, the courts of appeals have concluded that the government can immediately appeal the district court’s order.
The Administrative-Remand Rule & Cross Appeals
Under this rationale, the remand in Kaweah Delta was final, and the Department could appeal.
The Ninth Circuit also rejected the Department’s argument that the challengers could not file a cross appeal. The Department argued that there was no final, appealable decision when it came to the cross appeal. But under the administrative-remand rule, the remand in Kaweah Delta was final. And a decision that is final is final for everyone.
Given the pragmatic balancing involved in the administrative-remand rule, I can see the argument for there being no final decision when it comes to cross appeals. But Kaweah Delta seems correct to me on this point. And that’s not just because I’m not a fan of the administrative-remand rule. (So long as a remand marks the end of district court proceedings, it should be a final decision under 28 U.S.C. § 1291.) If a decision is final, it should probably be final for everyone, thereby giving appellate courts jurisdiction over appeals from any aggrieved party.
Kaweah Delta Health Care District v. Becerra, 2024 WL 5063933 (9th Cir. Dec. 11, 2024), available at the Ninth Circuit and Westlaw
The Fourth Circuit held that a motion to reconsider an order reset the time to appeal, even though the order was interlocutory and the motion didn’t cite Rule 59(e).
December 10, 2024
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 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.
Resetting the appeal clock, dismissals after ordering arbitration, successive injunctions, and more.
December 9, 2024
November saw a pair of interesting decisions on the application of Smith v. Spizzirri as well as a formal standard for successive injunction appeals in the Tenth Circuit. But let’s start with a decision on whether a post-judgment motion to reconsider reset the appeal clock.
- The Sixth Circuit on Post-Judgment Motions that Don’t Reset the Appeal Clock
- Applying Smith v. Spizzirri
- The Tenth Circuit’s Standard on Successive Injunction Appeals
- The Fifth Circuit Heard Another Governmental-Privilege Appeal
- Cert Petition the Eleventh Circuit’s Both-Questions Rule for Qualified-Immunity Appeals
- The Month’s Improper Qualified-Immunity Appeals
- Quick Notes
The Sixth Circuit on Post-Judgment Motions that Don’t Reset the Appeal Clock
Disclosure: I consulted on the plaintiff’s motion to reconsider this decision.
In Miller v. William Beaumont Hospital, the Sixth Circuit held that a post-judgment motion for reconsideration did not reset the appeal clock because the motion did not invoke Federal Rule of Civil Procedure 59(e). The plaintiff had relied on an abrogated local rule that authorized motions for reconsideration. According to the Sixth Circuit, reliance on the local rule prevented the motion from being one under Rule 59(e). So the motion for reconsideration did not reset the appeal time, making the plaintiff’s appeal from the merits decision untimely.
After the district court granted summary judgment in favor of the defendant in Miller, the plaintiff filed a motion titled “Motion for Reconsideration.” The body of the motion relied on an old version of Eastern District of Michigan Local Rule 7.1(h). Until 2021, that rule authorized motions for reconsideration of a judgment or order. But after recent amendments, the local rule now says that “[p]arties seeking reconsideration of final orders or judgments must file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). The court will not grant reconsideration of such an order or judgment under this rule.” The district court denied the motion for failing to cite to Rules 59(e) or 60(b). The plaintiff then appealed.
If the appeal clock began running at the summary-judgment decision, the plaintiff’s appeal was late. But Federal Rule of Appellate Procedure 4(a)(1) resets the appeal clock if a party files a timely motion under (among other provisions) Rule 59(e). The question, then, was whether the plaintiff’s motion qualified as one under Rule 59(e).
The Sixth Circuit held that it didn’t. Although prior Sixth Circuit decisions had treated motions under the old Local Rule 7.1(h) as a Rule 59(e) motion, the court would no longer do so. That’s because the current Local Rule 7.1(h) no longer authorizes relief similar to that available under Rule 59(e). According to the court, the current local rule prevents the Sixth Circuit from construing the motion as one under Rule 59(e).
There are several problems with this decision, which the plaintiff has pointed out in a motion to reconsider. Briefly, cases from the Sixth Circuit and elsewhere hold that the substance of post-judgment motions—not their styling—is what matters. Courts of appeals have accordingly treated motions as if they were brought under Rule 59(e) even though the motion did not cite that rule. Indeed, courts have held that motions reset the appeal deadline despite citing to the wrong rule.
More to the point, the plaintiff’s motion in Miller was effectively a Rule 59(e) motion. Granted, it cited to the wrong rule. But it sought the relief that Rule 59(e) authorizes. And the standard it invoked (that under the abrogated local rule) was little different than the standard courts apply to Rule 59(e) motions.
Finally, there is a general rule of federal practice that motions to reconsider filed within the time to appeal reset the appeal clock. Nothing more was needed in Miller to make the appeal timely.
The error in Miller was minor, and no one was harmed by it. The Sixth Circuit should have treated the motion as one that reset the appeal deadline. Hopefully the court rethinks this decision.
Miller v. William Beaumont Hospital, 2024 WL 4719240 (6th Cir. Nov. 8, 2024), available at the Sixth Circuit and Westlaw
Applying Smith v. Spizzirri
Last term, the Supreme Court held in Smith v. Spizzirri that district courts ordering arbitration must stay—not dismiss—the action so long as a party requests a stay. The decision had consequences for appellate jurisdiction. A decision ordering arbitration and dismissing an action is immediately appealable. A decision ordering arbitration and staying an action is not.
Last month saw two courts of appeals address the implications of Spizzirri for appellate jurisdiction. And the decisions supported my suspicion that asking for a stay is still required to get one.
Declining to Review an Arbitration Grant + Dismissal
In Bazzi v. JPMorgan Chase Bank, N.A., the Ninth Circuit declined to review a district court order that granted arbitration and then dismissed an action.
The dismissal gave the Ninth Circuit appellate jurisdiction. So the court could hear the appeal. But the court declined to do so. Given Spizzirri, the district court erred in dismissing the action. And an immediate appeal would interfere with the Federal Arbitration Act’s purpose of moving disputes to arbitration as swiftly as possible.
So rather than review the merits, the Ninth Circuit vacated the decision and remanded the action for entry of a stay.
Reviewing a Dismissal When Nobody Asked for a Stay
Contrast Bazzi with National Casualty Co. v. Continental Insurance Co., in which the Seventh Circuit refused to vacate a dismissal.
Like the district court in Bazzi, the district court in National Casualty granted the defendant’s motion to compel arbitration and—at that defendant’s request—dismissed the action. On appeal, the defendant asked the Seventh Circuit to vacate the dismissal and direct the district court to instead issue a stay.
The Seventh Circuit saw some problems with this request. The defendant had sought the dismissal, and the defendant had not filed a cross appeal. But more fundamentally, the defendant had never asked for a stay. And Spizzirri seemed to say that a request was necessary for a stay to be required. So the district court did not err in dismissing the action.
Bazzi v. JPMorgan Chase Bank, N.A., 2024 WL 4690125 (9th Cir. Nov. 6, 2024), available at the Ninth Circuit and Westlaw
National Casualty Co. v. Continental Insurance Co., 2024 WL 4866798 (7th Cir. Nov. 22, 2024), available at the Seventh Circuit and Westlaw
The Tenth Circuit’s Standard on Successive Injunction Appeals
In SEC v. Young, the Tenth Circuit held that it would hear a successive preliminary-injunction appeal only when there was a change in circumstances, evidence, or law since the prior motion.
The court explained that 28 U.S.C. § 1292(a)(1) carves out a narrow exception to the final-judgment rule. The statute accordingly must be construed narrowly. So “[w]hen a district court has denied a successive motion to modify a preliminary injunction—a motion that raises the same issues or raises issues that could have been raised in a prior motion—[the court will] exercise interlocutory jurisdiction only if there was a change in circumstances, evidence, or law since the prior motion.”
The successive motion in Young did not satisfy this standard. It raised arguments that the appellants could have made—and thus forfeited—in an earlier motion. And there was no change in circumstances, evidence, or law that would warrant a second look.
SEC v. Young, 121 F.4th 70 (10th Cir. Nov. 4, 2024), available at the Tenth Circuit and Westlaw
The Fifth Circuit Heard Another Governmental-Privilege Appeal
In Jones v. Reeves, the Fifth Circuit heard an appeal from a discovery order that rejected a claim of governmental privilege. But rather than decide the privilege issue, the court concluded that the plaintiffs lacked standing to sue.
I’ve already said quite a bit about the Fifth Circuit’s allowance of governmental-privilege appeals. No need to repeat it all here.
Jones v. Reeves, 121 F.4th 531 (5th Cir. Nov. 19, 2024), available at the Fifth Circuit and Westlaw
Cert Petition the Eleventh Circuit’s Both-Questions Rule for Qualified-Immunity Appeals
A new cert petition asks the Supreme Court to reject the Eleventh Circuit’s “both-questions” rule for qualified-immunity appeals. That rule (on which I’ve written here and recently filed an amicus brief criticizing) permits the Eleventh Circuit to review the genuineness of fact disputes in qualified-immunity appeals so long as the defendant also challenges the clarity of the alleged constitutional violation.
The case is Chisesi v. Hunady (and it appears to be a cross-petition for cert). The response is due December 13, 2024.
Petition for a Writ of Certiorari, Chisesi v. Hunady No. 24-538 (Nov. 8, 2024), available at the Supreme Court and Westlaw
The Month’s Improper Qualified-Immunity Appeals
Here are last month’s improper, fact-based qualified-immunity appeals:
- Griffin v. Fonda, 2024 WL 4763934 (2d Cir. Nov. 13, 2024), available at CourtListener and Westlaw
- Clerkley v. Holcomb, 2024 WL 4887389 (10th Cir. Nov. 26, 2024), available at the Tenth Circuit and Westlaw
Quick Notes
In In re Ruiz, the First Circuit held that it could immediately review a district court’s decision on the police-power exception to bankruptcy’s automatic stay. The police-power exception provides that bankruptcy’s automatic stay does not apply to actions brought to enforce the government’s police power. The First Circuit held that orders rejecting a police-power-exception argument were final under the collateral-order doctrine.
In re Ruiz, 2024 WL 4850069 (1st Cir. Nov. 21, 2024), available at the First Circuit and Westlaw
In Hansley v. DeJoy, the Fourth Circuit dismissed an appeal despite entry of a final judgment because the district court had not resolved all claims.
Hansley v. DeJoy, 2024 WL 4947275 (4th Cir. Dec. 3, 2024), available at the Fourth Circuit and Westlaw
And i Clark v. Santander Bank, N.A., the Second Circuit held that it had jurisdiction via the collateral-order doctrine to review an order denying an estate representative’s motion to proceed pro se.
Clark v. Santander Bank, N.A., 2024 WL 4862518 (2d Cir. Nov. 22, 2024), available at CourtListener and Westlaw
A wide variety of discovery appeals. Plus the prison-mailbox/mistaken-filing rule, appealing the Yearsley doctrine, and more.
November 7, 2024
October was discovery-appeal month. The Ninth Circuit held that a § 1782 order was not final when the district court had not resolved post-order objections to the discovery. The Fifth Circuit permitted an immediate appeal from a discovery order that implicated First Amendment interests. The Eleventh Circuit held that a party could not take a Perlman appeal when the same objections to discovery could be addressed through the party’s own contempt appeal. And a new cert petition asks if discovery orders are immediately appealable when a defendant has raised the qualified-immunity defense.
There were some additional decisions of note, including an attempted collateral-order appeal on the Yearsley doctrine and the Fifth Circuit’s reconciliation of the prison-mailbox and the mistaken-filing rules. But let’s start with a nice reminder that appellate courts need to have their own jurisdiction before they can address the district court’s.
The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
November 7, 2024
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.
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.
October 22, 2024
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.
The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.
The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply.
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.
October 22, 2024
In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals.
In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is deemed filed on the day it is deposited in the prison mail system. Rule 4(d) says that when litigants mistakenly send their notice to the court of appeals, the notice is deemed filed when the court of appeals receives it.
So what happens when an imprisoned appellant deposits a notice of appeal in the prison mail system but addresses that notice to a court of appeals? The Fifth Circuit held that Rule 4(c)(1)’s prison-mailbox rule applies, such that the notice is filed when deposited.
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.
October 5, 2024
September saw yet another court of appeals split over whether federal officials can immediately appeal the Bivens question without a qualified-immunity appeal. I’ve been following this issue for a while, and at least one more court of appeals is poised to address it. I won’t be surprised to see some cert petitions on this matter in the not-too-distant future.
In other developments, the Second Circuit held that Rule 4(a)(4) is a mandatory claims-processing rule, meaning that a court cannot excuse a failure to comply with it. The Tenth Circuit again failed to apply the Rule 3(c) amendments to a notice of appeal, instead limiting the scope of appeal to the order designated in the notice. And the Second Circuit addressed the state-sponsored terrorism bar to appeals from denials of foreign sovereign immunity. Plus the scope of remand appeals, the prison-mailbox rule applied to electronic filing, and more.
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.
September 13, 2024
In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.
The Ninth Circuit joined the Third and Tenth Circuits in rejecting pure Bivens appeals. But like those courts, the Ninth’s decision was split.
September 10, 2024
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.
In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.
So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.