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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.
In National ATM Council, Inc. v. Visa, Inc., the D.C. Circuit offered a rare explanation for granting a petition to appeal a class-certification grant under Federal Rule of Civil Procedure 23(f). The reasons given were particularly interesting.
In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.”
In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of appeals did not need to review the propriety of the collective action to address class certification. And the resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action. The court added that even if it could exercise pendent appellate jurisdiction, it would decline to do so given the complexity of the collective-action issues.
In In re Municipal Stormwater Pond Coordinated Litigation, a split Eighth Circuit held that it lacked jurisdiction to review the resolution of some claims when the parties conditionally dismissed other claims.
The parties agreed that, should the Eighth Circuit reverse, the voluntarily dismissed claims could be reinstated. But if the Eighth Circuit affirmed, the voluntarily dismissed claims were forever lost.
A majority of the Eighth Circuit held that this conditional dismissal did not result in a final, appealable decision. Judge Kelly dissented, contending that the dismissal was not actually conditional because the district court did not approve of the dismissal’s terms.
In Parrish v. United States, a divided Fourth Circuit dismissed an appeal because the would-be appellant did not file a second notice of appeal after the district court reopened the appeal time under Federal Rule of Appellate Procedure 4(a)(6). An earlier notice of appeal—which the Fourth Circuit had construed as a motion to reopen the appeal time—was insufficient. The would-be appellant instead needed to file a new one. Judge Gregory dissented to point out that this second notice of appeal is a needless, formalistic requirement.
Parrish sets up a trap for unwary litigants. And some litigants might fall into that trap; it’s not uncommon for courts of appeals to treat late notices of appeal—often from incarcerated, pro se litigants—as motions to reopen the appeal time under Rule 4(a)(6).
A procedural trap should serve some purpose. I see none in Parrish. I also agree with Judge Gregory that nothing in 28 U.S.C. § 2107(c) nor Rule 4(a)(6) requires a second notice. Hopefully the Fourth Circuit will rethink this matter.
In Selective Insurance Company of America v. Westfield Insurance Company, the Fourth Circuit dismissed an interlocutory appeal from a duty-to-defend decision. The court assumed—as other courts have held—that duty-to-defend orders can be appealable injunctions under 28 U.S.C. § 1292(a)(1). But the underlying litigation in Selective Insurance (that is, the litigation in which the insured was seeking a defense) was resolved while the duty-to-defend appeal was pending. Because that underlying litigation was over, the duty-to-defend order no longer imposed any prospective obligations on the insurance company. The Fourth Circuit thus concluded that the duty-to-defend order “lack[ed] the character of an injunction” and thus could not be immediately appealed via § 1292(a)(1).
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