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In Hampton v. California, the Ninth Circuit held that defendants can immediately appeal from the denial of PREP Act immunity via the collateral-order doctrine. I think this is the first time a court of appeals has done so. (The Second Circuit avoided deciding this issue last spring, and the D.C. Circuit addressed appealability only under a specific provision of the Act.) And I have some doubts about the conclusion. I’m not sure that defenses like this should be immediately appealable via the collateral-order doctrine. I recognize that the caselaw is completely against me on this point. But I don’t think immunities from litigation are actually separate from (“collateral to”) that litigation.
September saw more drama over Federal Rule of Appellate Procedure 3(c), as the Eleventh Circuit appeared to use Rule 3(c)(6) to revive the old practice of limiting the scope of an appeal to the designated order. The courts of appeals also addressed manufactured finality in the bankruptcy context, a discovery appeal implicating the Speech or Debate Clause, and the appealability of decisions on substituting counsel. Plus more judges questioning the appealability of anti-SLAPP motions, addressing preclusion as part of a qualified-immunity appeal, and a new cert petition on manufactured finality.
In Kiviti v. Bhatt, the Fourth Circuit dismissed an appeal from an order deeming a debt dischargeable in bankruptcy. That discharge order meant the creditors would have to pursue that debt through bankruptcy. But it also left unresolved the creditors’ request to declare the existence of that debt. The Fourth Circuit held that the parties could not secure an appeal from the discharge decision by voluntarily dismissing this remaining request without prejudice. Granted, the discharge order made pursuing that request unattractive; the creditors were not likely to recover much (if anything) on that debt through the bankruptcy proceedings. But the discharge decision did not effectively resolve the creditors’ claim. It was merely an adverse interlocutory decision. And litigants cannot manufacture appeals from these sorts of decisions by voluntarily dismissing their claims.
Until recently, several courts of appeals limited the scope of appeals to the orders designated in the notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. But those amendments also provided a way for litigants to limit the scope of an appeal. The new Rule 3(c)(6) lets appellants “designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.”
In United States v. Sylvain, the Eleventh Circuit became the first court that I’m aware of to limit the scope of an appeal via Rule 3(c)(6). The court concluded that designating one order in a notice of appeal limited the appeal to that order. That is, specifying one order—and not any others—was an express statement limiting the scope of appeal under Rule 3(C)(6).
That can’t be right. Designating one order while not mentioning others is hardly an express statement limiting the scope of appeal. Indeed, the Rule 3(c) amendments were supposed to prevent courts from limiting the scope of appeal in this situation. The Eleventh Circuit’s application of Rule 3(c)(6) thus risks undoing the Rule 3(c) amendments.
I have a new article on the distinct roles that final decisions and final judgments play in the law of federal appellate jurisdiction.
I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.
I spent most of August busy or sick or both. So there weren’t many posts about decisions. But the month was still full of interesting developments.
When a district court grants relief under 28 U.S.C. § 2255, it can choose from among several different remedies. Among those remedies are (1) correcting the petitioner’s sentence and (2) conducting a full resentencing. Successful § 2255 petitioners who want to challenge their new sentence can appeal under 28 U.S.C. § 1291 without first obtaining a certificate of appealability. But what if a § 2255 petitioner wants to challenge only the choice of remedy—correcting the sentence rather than resentencing—without challenging the sentence itself?
In Clark v. United States, the Third Circuit held that a § 2255 petitioner challenging the choice of remedy must obtain a certificate of appealability. In so holding, the Third Circuit joined with the Eleventh Circuit and split from the Fourth and Sixth Circuits. The court of appeals went on to hold that the petitioner in Clark had not made the requisite showing for a certificate of appealability.
Courts have held that when an “order” is appealable—say, via a certified appeal under 28 U.S.C. § 1292(b) or an exception to 28 U.S.C. § 1447(d)’s bar on remand appeals—the entirety of the district court’s order is within the scope of appeal. So when a district court certifies an order for an immediate appeal under § 1292(b), the entire order is within the scope of appeal, not just the issue that the district court thought warranted review. And when a case is removed on one of the grounds that § 1447(d) excepts from the general bar on remand appeals, the entire remand order is appealable, not just the excepted ground.
In Boshears v. PeopleConnect, Inc., the Ninth Circuit noted that there are limits on what it means for an “order” to be appealable. There’s a difference between orders and the documents that contain them. So even if an order is appealable, other orders contained in the same document are not.
July produced two opinions in Rule 23(f) appeals from class-certification decisions. One addressed whether a FLSA collective-action decision could tag along via pendent appellate jurisdiction, and the other thought that an appeal was proper due to the district court’s inadequate explanation. There were also some pendent appellate jurisdiction decisions involving sovereign immunity. And two courts held that duty-to-defend decisions were not appealable injunctions. Plus decisions on government appeals from compassionate-release grants, appeals from conditional dismissals, jurisdiction after an agreement to appeal, several improper qualified-immunity appeals, and much more.
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